A    TREATISE 


LAW   OF 


EXECUTORS  AND  ADMINISTRATORS 


BY 


JAMES    SCHOULER, 

Lecturer  in  the  Boston  TJniversity  Law  School,  and  Author  of  Trbatises 
ON  "  The  Law  of  Wfi.hs,"  "  Bailments  and  Carriers,"  etc. 


SECOND    EDITION. 


BOSTON: 

THE    BOSTON    BOOK   COMPANY. 

1889. 


Copyright,  /88s, 
By  James  Schouler. 


Copyright,  i88g. 
By  James  Schouler. 


Electrotyped  by  J.  S.  Gushing  &  Co.,  Boston. 
Presswork  by  John  Wilson  &  Son,  University  Press,  Cambridge. 


^ 


NOTE   TO   SECOND    EDITION. 


The  author  has  made  use  of  the  latest  English  and  Amer- 
ican decisions,  in  the  present  edition,  and  has  personally 
revised  the  entire  volume.  He  avails  himself  of  this  oppor- 
tunity to  thank  his  fellow-members  of  the  profession  for  their 
generous  appreciation  of  this  work,  as  well  as  of  the  compan- 
ion volume  on  the  law  of  Wills,  which  he  issued  subsequently 

to  the  first  edition  of  the  present  treatise. 

J.  S. 
January  i,  1889. 


PREFACE. 


The  present  work  completes  an  investigation  of  the  law 
of  Personal  Property,  whose  results  the  writer  commenced 
publishing  ten  years  ago ;  an  investigation  pursued  far  be- 
yond the  limits  originally  proposed,  but  not  without  direct 
encouragement  from  his  professional  brethren. 

Four  volumes  properly  comprehend  the  main  subject,  as 
follows : 

1.  The  Nature,  General  Incidents,  and  Leading  Classes  of 

Personal  Property.     Schouler  on  Personal  Prop- 
erty, Vol.  I. 

2.  Title    to    Personal    Property   by  Original    Acquisition, 

Gift  and  Sale.     Schouler  on  Personal  Property, 

Vol.  II.  ;  or,  as  it  might  well  be  styled,  Schouler 
ON  Gifts  and  Sales. 

3.  Title  to  Personal   Property  by  Bailment.  Schouler 

ON    Bailments,   including    Carriers,    Innkeepers 
AND  Pledge. 

4.  Title  to   Personal  Property  by  Death.     Schouler  on 

Executors  and  Administrators. 

Elementary  writers  discourse  further  of  Title  to  Personal 
Property  by  Judgment  and  Insolvency  ;  but  the  law  per- 
taining to  these  subjects  is  greatly  controlled  at  this  day 
by  statutes  of  local  application,  and,  besides,  may  be  found 
amply  discussed  in  text-books  already  familiar  to  the  prac- 
titioner. 


VI  PREFACE. 

A  practical  experience  in  the  special  branch  of  law  which 
pertains  to  executors  and  administrators  has  been  found 
serviceable  to  the  writer  in  preparing  the  present  volume. 
The  latest  published  reports,  English  and  American,  to  the 
close  of  the  year  1882,  have  been  personally  consulted  by 
him,  and  cited  so  far  as  seemed  desirable.  The  American 
decisions,  reported  in  the  United  States  Digest,  have  been 
carefully  studied.  Whatever  other  assistance  has  been  re- 
ceived, from  text-books,  and  especially  from  the  elaborate 
English  work  of  Williams,  on  this  subject,  is  duly  acknowl- 
edged in  the  foot-notes.  Without  instituting  comparisons 
with  other  text-writers  on  this  important  branch  of  the  law, 
the  author  may  fairly  claim,  as  he  submits,  that  no  work  of 
a  single  volume  is  already  before  the  professional  public, 
presenting  historically  and  logically  the  whole  English  and 
American  law  of  executors  and  administrators,  vidth  a  due 
regard  for  the  modern  practical  needs  of  such  fiduciaries 
and  their  legal  advisers,  separating  the  main  subject  from 
those  more  abstruse  topics  which  pertain  to  Wills  and 
Testamentary  Trusts,  and  giving  to  the  excellent  points 
of  our  American  probate  practice  of  this  day  the  promi- 
nence justly  deserved.  He  trusts,  therefore,  that  the  present 
work  will  be  found  to  supply  an  actual  want,  in  a  genuine 
sense. 

JAMES   SCHOULER. 
Boston,  March  31,  1883. 


TABLE   OF   CONTENTS. 


PART  I. 
INTRODUCTORY  CHAPTER. 

PAGE 

§   r.  Estates  of  Deceased  Persons;  how  settled  in  Modern  Practice; 

Theory  of  Judicial  Supervision i 

2.  Settlement   of  Estates,   Testate   or   Intestate;    Executors  and 

Administrators,  and  their  Functions  ;  Administration    ...         2 

3.  Whether  there  may  be  a  Will  without  an  E.xecutor     ....         4 

4.  Devise  and  Bequest  or  Legacy  distinguished  ;  whether  a  Will 

can  operate  upon  Property  afterwards  acquired 5 

5.  Personal  Property  is  administered ;  whether  Real  Estate  can  be 

applied 6 

6.  Succession  in  Civil  Law  ;  as  distinguished  from  Administration,         8 

7.  Testacy  preferred  to  Intestacy   in    Civil   and   Common    Law ; 

Former  Abuses  in  English  Law  where  Intestate  Estates  were 
administered 10 

8.  Wills  of  Real  and  Personal  Property,  whether  distinguishable 

of  Right;  Modern  Statute  of  Wills 12 

9.  Ancient    Doctrine   of   the    Reasonable    Parts   of  Widow   and 

Children;  Wills  of  Personal  Property  affected     .     .  .     .       13 

10.  Jurisdiction  in  the  Grant  of  Letters  Testamentary  and  Admin- 

istration ;  English  Ecclesiastical  Courts 13 

11,  12.  Probate  Jurisdiction  in  the  United  States 15,  16 

13.  The  Subject  continued  ;  Probate  Procedure  in  the  United  States,       17 

14.  Modern   Probate  Jurisdiction  in  England  ;  New  Court  of  Pro- 

bate Act 19 

15.  Conflict  of  Laws  in  Wills  and  Administration  ;  General  Rule  of 

Comity ;  Authority  of  Representative  is  Local ;    Rule  as  to 
Foreign  Creditors 21 

16.  Conflict  of  Laws ;    Comity  Favors  as  to  Payment  of  Legacies 

and  Distribution 24 

17.  Conflict  of  Laws;  Rule  as  to  Execution  and  Validity  of  Will    .       25 

18.  Conflict  of  Laws ;    Rule  as  to  Accountability  of  Executor  or 

Administrator 27 


Viu  TABLE    OF    CONTENTS. 

PAGE 

§    19.  Conflict  of  Laws  ;  Personal  and  Real  Estate  contrasted  ;  Situs 

prevails  as  to  Real 27 

20.  Conflict  of  Laws  ;  General  Rules  varied  by  Treaty,  Statute,  etc.  28 

21.  Last  Domicile  :   what  this  is ;  Residence,  Inhabitancy     ...  29 

22.  Last  Domicile  ;  applied  to  the  Subject  of  Administration     .     .  32 

23.  Last  Domicile  ;  Death  while  on  Transit,  etc 33 

24.  Locality  of  Personalty  or  Bona  Notabilia  may  confer  Jurisdic- 

tion, aside  from  Domicile  ;  Questions  of  Double  Jurisdiction.       34 

25.  The  Subject  continued ;  whether  Assets  brought  in  may  con- 

fer Jurisdiction 37 

25  a.  The  Subject  continued ;   Suits  for  Assets  owing  by  a  Cor- 
poration      2>7 

26.  The    Subject   continued ;    Right  of  Action  created  by  Local 

Statute  confers  no  External  Jurisdiction 38 

27.  Whether    Locality  of  a  Decedent's    Real   Estate  may  confer 

Jurisdiction 39 

28.  Constitutional  Points  affecting  Administration  in  the  United 

States 39 

29.  Probate  Jurisdiction  exercised  by  each  State  separately ;  Uni- 

ted States  Courts  should  not  interfere 40 


PART   II. 


APPOINTMENT    AND    QUALIFICATION    OF    EXECUTORS    AND 
ADMINISTRATORS. 

CHAPTER  L 

APPOINTMENT   OF   EXECUTORS. 

30.  Modern  Definition  of  Executor 41 

31.  Designation  of  Executor  under  a  Will ;  the  Trust  may  may  be 

Absolute  or  Qualified 42 

32.  Who  are  capable  of  becoming  Executors ;  Rule  as  to  Married 

Women,  Infants,  Corporations,  Aliens,  etc 42 

33.  Who  are  capable  of  becoming  Executors ;    Rule  as  to  Crimi- 

nals, Dissolute  Persons,  Insolvents,  etc 44 

34.  Miscellaneous  Disabilities  for  the  Office 47 

35.  Express  Appointment  of  Executor  by  Testament 48 

36.  Constructive    Appointment    by   designating  Functions,    etc. ; 

Executor  according  to  the  Tenor 48 

yj.  The  same  Subject ;  Mere  Designation  of  Trustees,  Legatees, 

etc.,  insufficient  for  Executorship 49 

38.  The  same  Subject ;  identifying  the  Executor 50 

39.  The  same  Subject ;  Suggested  Executor ;  Adviser,  etc.    ...  50 


TABLE    OF    CONTENTS.  IX 

I'A(;r 
§  40.  The  same  Subject ;  Conditional  Appointment ;   Substitution ; 

Co-Executors,  etc 51 

41.  Testator's  Delegation  of  the  Power  to  name  an  Executor  or 

Co-Executor 52 

42.  Limited  or  Conditional  Executorship 53 

43.  Whether  the  Executorship  passes  to  an  Executors  Represen- 

tatives     55 

44.  Acceptance  and  Refusal  of  the  Executorship ;  Citation  of  the 

Person  named,  etc 56 

45.  The  same  Subject ;  Death  equivalent  to  a  Renunciation      .     .       58 

46.  The  same  Subject ;  Refusal  of  Record ;  Constructive  Refusal 

or  Acceptance 59 

47.  The  same  Subject ;   Constructive  Acceptance  or  Refusal  not 

favored  in  Modern  Probate  Practice 61 

48.  Executor's  Right  to  Renounce  not  to  be  exercised  Corruptly, 

nor  for  Sinister  Objects 63 

49.  Whether  an  Executor  renouncing  may  exercise  a  Power      .     .       63 

50.  Retraction  after  a  Renunciation  ;   Subsequent  Appointment  of 

the  Executor 64 

51.  Renunciation  where  Several  Executors  are  named       ....       65 

52.  Executors,  how  appointed  by  the  Court ;  Letters  Testamentary,      66 

CHAPTER   n. 

PROBATE   OF   THE   WILL. 

§  53.  Duty  of  producing  the  Will ;  Fundamental  Importance  of  de- 
termining Testacy  or  Intestacy,  etc 67 

54.  Procedure  against  Persons  suspected  of  secreting,  destroying, 

etc.,  the  Will '  .     .       68 

55.  Death  of  Testator;  its  Effect  upon  his  Will 6g 

56.  How  soon  after  the  Testator's  Death  should  the  Will  be  pre- 

sented for  Probate 71 

57.  Primary  Probate  Jurisdiction  depends  upon  Last  Domicile  of 

Deceased  ;  Foreign  Wills 72 

58.  Testamentary  Papers  Ineffectual  until  after  Proper  Probate ; 

Probate  relates  back y^ 

59.  What   Testamentary  Papers  require  Probate ;    Wills  of  Real 

and  Personal  Property 74 

60.  Testamentary    Papers    requiring  a   Probate ;    Various    Kinds 

stated  ;  Wills,  Codicils,  etc 75 

61.  Testamentary  Papers  requiring  a  Probate ;  Secret  Wills ;  E.\- 

traneous  Documents  referred  to 76 

62.  Instruments  which  do  not  purport  to  be  Testamentary    ...       yj 

63.  Modern  Laxity  as  to  Papers  of  a  Testamentary  Character  cor- 

rected by  Statutes  requiring  Attestation,  etc 78 


X  TABLE    OF    CONTENTS. 

PAGE 

§  64.  By  whom  the  Will  should  be  propounded  for  Probate     ...  81 

65.  Petition  and  Proceedings  for  Probate,  etc. ;  Probate  in  Com- 

mon Form  and  Probate  in  Solemn  Form 82 

66,  67.  Probate  of  Will  in  Common  Form 83,  85 

68.  The  Subject  continued ;    American  Statutes  as  to  Non-Con- 

tentious Business 86 

69.  Probate  of  Will  in  Solemn  Form  ;  English  Practice    ....  87 

70.  Probate  of  Will  in  Solemn  Form  ;  American  Practice      ...  89 

71.  Contest  over  Conflicting  Testamentary  Papers 92 

72.  Agreement  of  Parties  in  Interest  to  conform  to  an  Invalid  Will,  92 
Ti,.  The  Proof  needful   to  establish  a  Will ;    Proceedings  at  the 

Hearing  for  Probate 93 

74.  Proof  of  the  Will ;  Instrument  to  be  in  Writing,  and  signed  by 

the  Testator 94 

75.  Signing  by  the  Testator ;  Subject  continued  ;  Publication,  etc.  98 

76.  Proof  of  the  Will ;  Subscribing  Witnesses 100 

"JT-  Proof  of  the  Will ;  Mode  of  Attestation  by  Witnesses     .     .     .  103 

78.  Proof  of  the  Will ;  Attestation  Clause 105 

79.  Proof  of  the  Will ;   Suitable  Testamentary  Condition  on  the 

Part  of  the  Testator 106 

80.  Proof  of  the  Will ;    Suitable    Testamentary  Condition  as  re- 

spects Legal  Capacity 108 

81.  Proof  of  the  Will ;  Testimony  at  the  Hearing 109 

82.  Revocation  or  Alteration  of  Wills  ;  Codicils ;  New  Wills,  etc.  1 1 1 

83.  Rule  of  Escrow  not  applicable  to  Wills 113 

84.  Lost  Wills;  Republication  of  Will ;  Informal  Alterations,  etc.  .  114 

85.  Probate  in  Whole  or  in  Part 115 

86.  Probate  in  Fac-Simile,  or  by  Translation 118 

87.  Probate    of  Two   or  More   Testamentary   Papers ;    Grant   to 

Executors 118 

88.  Decree  of  Probate  entered  ;  Public  Custody  of  the  Will .     .     .  119 

89.  Nuncupative  Wills 119 

CHAPTER   III. 

APPOINTMENT  OF   ORIGINAL   AND   GENERAL   ADMINISTRATORS. 

§  90.  Original  and  General  Administration  granted  wherever  there 

is  no  Executor,  etc. ;  Origin  of  this  Jurisdiction      ....  121 

91.  Intestacy  Fundamental  to  the  Grant  of  General  Administra- 

tion; Death  and  Domicile  or  Local  Assets 122 

92.  Presumption  favors  Jurisdiction  where  the  Grant  is  conferred  ; 

but  the  Fundamental  Facts  must  exist 123 

93.  Value  or  Kind  of  Estate,  whether  Fundamental 124 

94.  Time  within  which  Original  Administration  must  be  applied 

for 124 


TABLE    OF    CONTENTS.  » 

PAGE 

§  95.  No  Original  and  General  Administration  granted  while  Otlier 

Letters  are  in  Full  Force,  etc. ;  Double  Jurisdiction     .     .     .     125 

96.  Judicial    Inquiry   into    the    Facts    Essential    to   the   Grant   of 

Administration 126 

97.  Persons  to  whom  General  Administration  is  granted  ....     126 

98.  Husband's   Right  to  administer  upon  the  Estate  of  his  De- 

ceased Wife 127 

99.  100.  Widow's  Right  to  administer  upon    the    Estate   of  her 

Deceased  Husband 129,  131 

101.  Right  of  the  Next  of  Kin  to  administer;  Consanguinity       .     .     132 

102.  The  same  Subject ;    How  to  ascertain  the  Preference  among 

Kindred i33 

103.  The  same  Subject;  Preferences  among  Kindred  of  the  same 

Degree,  etc 135 

104.  Leading  Considerations  which  affect  the  Choice  among  Per- 

sons equally  entitled  by  Law  to  administer;  Suitableness, 

etc 137 

105.  The    same    Subject;    Suitableness    as    between    Males    and 

Females,  the  Elder  and  Younger,  etc 139 

106.  Suitableness  as  concerns  Married  Women  ;  Husband's  Admin- 

istration in  Wife's  Right 139 

107.  Unsuitableness  as  to  Insane  Persons;  Infants;  Corporations, 

etc 141 

108.  Illegitimate  Children  and  their  Right  to  administer    ....  141 

109.  Whether  Non-residence  disqualifies 141 

1 10.  Other  Considerations  for  determining  the  Choice  of  Adminis- 

trator       142 

111.  Statute  Order  among  Next  of  Kin  stated 143 

112.  Renunciation  or  Non-Appearance  of  those  entitled  by  Prefer- 

ence to  administer ;  Citation 144 

113.  Nomination   of  a  Third  Person   by   the    Person   entitled    to 

administer 146 

114.  Unsuitableness  of  a  Judge  of  Probate,  etc.,  for  the  Appoint- 

ment        147 

115.  Right  of  Creditor  or  Stranger  to  be  appointed  in  Default  of 

Kindred,  etc 148 

116.  Public  Administrator  or  other  Official  apf>ointed  in  Certain 

Cases 151 

117.  English  Rule  in  Cases  Analogous  to  those  which  call  for  a 

Public  Administrator 154 

118.  Method  and  Form  of  granting  Letters  of  Administration     .     .     157 

119.  Administrator  as   such    must   be   appointed;    Credentials   of 

Authority 160 

120.  In  what  Cases  Administration  may  be  dispensed  with     .     .     .     160 


Xll  TABLE    OF    CONTENTS. 

CHAPTER   IV. 

APPOINTMENT  OF   ADMINISTRATORS   NOT   ORIGINAL   AND   GENERAL. 

PAGE 

§  121.  Administration  is  not  always  Original  or  General 164 

122.  Administration    with    the    Will    annexed    {ctitn    testamento 

annexe')-,  when  granted  and  how 164 

123.  Administration   with   the  Will   annexed;    Functions   of  the 

Office 165 

124.  Administration  with  the  Will  annexed;    to  whom  granted; 

Residuary  Legatee 166 

125.  Administration  with  the  Will  annexed;  Appointment  of  Next 

of  Kin 166 

126.  Administration  with  the  Will  annexed;  Surviving  Spouse's 

Right  considered 167 

127.  Administration  with  the  Will  annexed;  Executor's  Rights     .     168 

128.  Administration  of  Personalty  not   already  administered  {de 

bonis  non)  ;  when  granted,  etc 169 

129.  Administration  de  bonis  non  ;  to  whom  committed    ....     172 

130.  Death  of  Surviving  Spouse  pending  Settlement  of  Deceased 

Spouse's  Estate .*    .     .     .     174 

131.  Administration  de  bonis  non  ;  Miscellaneous  Points  ....     174 

132.  Temporary  Administration ;  Administration  during  Minority 

{durante  minor e  estate) 175 

133.  Temporary  Administration;    Administration  durante  absen- 

tia     177 

134.  Other  Temporar)^  Administration;    Administration  ^^«^(?«/^ 

lUe,  etc 179 

135.  Special  Administration,  for  Limited  and  Special  Purposes,  etc.     181 

CHAPTER  V. 

THE  BONDS  OF  EXECUTORS  AND  ADMINISTRATORS. 

§   136.  Necessity   of  qualifying   before   Appointment;    Security   re- 
quired by  the  Court 186 

137.  Bonds;  when  and  how  required  from  an  Executor     ....  186 

138.  Bonds  required  from  an  Executor;  Residuary  Legatee's  Bond  189 

139.  Bonds  reqiyred  from  an  Administrator ;  English  Rule  .     .     .  190 

140.  Bonds  required  from  an  Administrator ;  American  Practice    .  193 

141.  Probate  Bonds;  how  taken 194 

142.  Probate    Bonds ;    Irregularities,   etc.,   attending    Execution, 

how  far  Available 196 

143.  Whether  a   Probate    Bond    may   bind,    as    a    Common-law 

Bond iq8 


TABLE    OF    CONTENTS.  Xlll 

PAGE 
§    144.  Sufficiency  of  Probate  Bonds,  as  to  the  Security  and  the  Par- 
ties offered 199 

145.  Co-Executors   and   Co-Administrators ;    Joint   and    Separate 

Bonds 200 

146.  Probate    Bond ;    what  Property  is  covered ;    what  Functions 

inchided.  etc 200 

147.  Release  or  Discharge  of  Sureties 203 

148.  New  or  Additional  Bonds ;  when  and  how  required       .     .     .  203 

149.  Lost  and  Missing  Probate  Bonds 205 


CHAPTER  VI. 

REVOCATION   OF   LETTERS;    NEW   APPOINTMENT,    ETC. 

'§   150,  151.   Appeal   from   Decree   of   Probate   Court;    Mandamus, 

etc 206,  208 

152.  Revocation  by  Proceedings  in  the  Probate  Court      ....     209 

153.  Grounds  upon  which  Revocation  is  Proper 211 

154.  Removal  of  Executor  or  Administrator 213 

155.  Procedure  in  Case  of  Revocation  of  Appointment  or  Removal 

from  Office 216 

156.  Resignation  of  Executor  or  Administrator 217 

157.  Jurisdiction,  in  general,  as  to  Revocation,  Removal,  and  Ac- 

cepting a  Resignation 218 

158.  Natural    Termination    of  an  Executor's   or   Administrator's 

Authority 219 

159.  Delegation  of  Authority  does  not  relieve;    but  Supersedure 

does 220 

160.  The  Effect  of  Probate  Decrees 220 

161.  Effect  of  an  Appeal  from  Decree 225 

CHAPTER   VH. 

FOREIGN  AND  ANCILLARY  APPOINTMENTS. 

§   162.  The  Subject  of  Foreign  and  Ancillary  Appointments  consid- 
ered frequently  in  the  United  States  but  not  in  England      .     226 

163.  What  is  Ancillary  Administration 226 

164.  Letters  Testamentary  or  of  Administration  have  no  Extra- 

territorial Force 237 

165.  Each  Sovereignty  competent  to  confer  a  Probate  Authority 

within  its  own  Jurisdiction 228 

166.  Local  Sovereignty  recognizes  Limitations  grounded  in  Comity, 

Good  Policy,  and  Natural  Justice 228 


XIV  TABLE    OF    CONTENTS. 

PAGE 

§   167.  Administration  in  the  last  Domicile  is  the  Principal;  Other 

Administrations  are  Ancillary 229 

168.  Principal  Letters  need  not  precede  the  Ancillary       ....     230 

169.  Foreign  and  Domestic  Probate  and  Letters  Testamentary ; 

English  Doctrine 230 

170.  The  same  Subject ;  American  Doctrine 233 

171.  Whether  Will,  to  be  operative,  must  conform  to  the  Law  of 

Last  Domicile 234 

172.  Foreign  and  Domestic  Administration 235 

173.  Foreign  Appointment  of  Executors  or  Administrators  una- 

vailable in  Domestic  Jurisdiction  ;  Local  Letters  required  ; 
Exceptions 236 

174.  Principal  and  Ancillary  Letters ;    Comity  as  to  transmitting 

Assets  for  Distribution,  after  Local  Debts  are  satisfied   .     .     239 

175.  Duty  of  the  Domestic  Representative  as  to  Foreign  Assets     .     241 

176.  Voluntary  Surrender  of  Assets  in  Local  Jurisdiction  to  Domi- 

ciliary Administrator 244 

177.  Liability  of  Representative  in  Domestic  Jurisdiction  for  Acts 

done  Abroad 245 

178.  Permitting  Foreign  Creditors  to  sue  in  the  Local  Jurisdic- 

tion            t     .     .     .     246 

179.  Principal  and  Ancillary  Jurisdictions,  how  far  Independent  . 

of  One  Another 247 

180.  Responsibility  where  the  same  Person  is  Principal  and  An- 

cillary Representative 248 

181.  Ancillary  or  Local  Representative,  how  far  Responsible  for 

Assets 249 

182.  Where  Different  Executors  are  named  in  a  Will  for  Different 

Sovereign  Jurisdictions 250 

183.  Where  the  Principal  Representative  cannot  procure  Foreign 

Assets,  Legatees  or  Distributees  may  pursue 250 

CHAPTER  VIII. 

OFFICIATING   WITHOUT  AN   APPOINTMENT. 

§  184.  Executor  de  son  Tort  at  Common  Law  defined 252 

185.  Various  Circumstances   under  which   One    may  act  without 

having  been  qualified 253 

186.  Wrongful  and  Injurious  Dealings  with  a  Dead  Person's  Es- 

tate ;  Executor  de  son  Tort 254 

187.  Executorship  </i?  jfl«  Tort;  Legal  Consequences 256 

188.  Effect  of  Wrongful  and  Injurious  Dealings,  aside  from   the 

Theory  of  Executorship  de  son  Tort 258 

189.  Modern  Statutes  restrict  the  Liability  of  Intruder  to  Credi- 

tors and  Strangers 259 


TABLE    OF    CONTENTS.  XV 

PAOB 

§   190.  Liability  of  Intruder  upon  the  Estate  to  the  Rightful  Execu- 
tor or  Administrator 260 

191.  Intermeddling  with  Lands  of  the  Deceased 261 

192.  Liability  of  One  who  administers  under  V^oid  Letters,  etc.      .  262 

193.  Beneficial  Dealings  with  a  Dead  Person's  Estate  by  One  not 

appointed 262 

194.  Acts  done  by  a  Rightful  Executor  before  qualifying       .     .     .  264 

195.  Acts  done  by  a  Rightful  Administrator  before  qualifying  .     .  267 

196.  Whether  a  Suitable    Representative  who   has   intermeddled 

can  be  compelled  to  take  out  Letters 270 

197.  Intermeddling  by  a  Third  Person  after  the  Grant  of  Letters 

Testamentary  or  Administration 271 


PART  III. 

ASSETS    AND    THE    INVENTORY. 
CHAPTER  I. 

ASSETS   OF   AN   ESTATE. 

§    198.  What  comprise  Assets  of  a  Deceased  Person's  Estate ;  Per- 
sonal contrasted  with  Real  Assets 273 

199.  Personal  Property  of  the  Decedent  vests  in  the  Executor  or 

Administrator 273 

200.  Enumeration  of  Personal  Assets ;  Choses  in  Action  as  well 

as  Choses  in  Possession 273 

201.  Enumeration  of  Personal  Assets  continued ;  Contingent  and 

Executory  Interests 276 

202.  Enumeration  of  Personal  Assets  continued ;    Stock ;    Public 

and  Corporation  Securities ;  Life  Insurance  Policies  .     .     .     276 

203.  Enumeration  of  Personal  Assets  continued ;  Personal  Prop- 

erty taken  or  given  in  Security 277 

204.  To  constitute  Personal  Assets,  the  Title  must  have  stood  in 

the  Decedent  at  his  Death 278 

205.  Personal  Property  of  Another  among  the  Goods  of  Deceased 

not  Assets ;   Identification 279 

206.  Personal  Property  of  the  Decedent  left  in  Another's  Posses- 

sion is  Assets 280 

207.  Personal    Property  constitutes  Assets  notwithstanding  Ulti- 

mate Title  of  Legatee's  Heirs,  etc 281 

208.  Debt  due  from  Representative  or  Legatee,  etc.,  to  the  Dece- 

dent constitutes  Personal  Assets 281 


XVI  TABLE    OF    CONTENTS. 

PAGE 

§   209.  Personal  Assets  coming  to  the  Knowledge  but  not  Posses- 
sion of  the  Representative 283 

210.  Personal  Assets  or  not,  where  Decedent's  Title  was  Qualified     284 

211.  Various  Cases  where  Representative  does  not  hold  strictly  as 

Assets 285 

212.  Real  Estate  descends  to  Heirs;    not  Assets  except  for  Defi- 

ciency     286 

213.  Executor  or  Administrator  has  no  Inherent  Authority  as  to 

Real  Estate 287 

214.  Real  Estate  of  Mortgagor  or  Mortgagee  ;  Rule  of  Assets   .     .  288 

215.  Rule  of  Assets  as  to  Lands  set  off  in  Execution 289 

216.  Rents,  Profits,  and  Income  of  Real  Estate;  Rule  of  Assets    .  290 

217.  Legal   Character    of    Property,    Real   or    Personal,   fixed   at 

Owner's  Death  ;  Rule  of  Equitable  Conversion 290 

218.  Character  of  Property  at   Owner's  Death;   Instances;    Con- 

tract to  sell ;  Land  Damages;  Fire-insurance  Money,  etc.    .     292 

219.  Gifts  Gzwj^  J/wZ/j- as  affecting  Question  of  Assets    ....     293 

220.  Assignment,    Gift,    or    Transfer    by   the    Decedent,    to    be 

avoided  if  Fraudulent  as  against  his  Creditors 294 

221.  Equitable  Assets  as  distinguished  from  Legal  Assets      .     .     .  295 

222.  Assets  where  Property  is  appointed  under  a  Power,  ....  297 

223.  Chattels  Real  as  Assets ;  Leases,  etc 298 

224.  Chattels  which  come  by  Remainder  as  Assets 299 

225.  Things  on  the  Border-line  of  Real  and  Personal ;    Rule  of 

Assets  applied  to  Heirlooms 299 

226.  Rule  of  Assets  applied  to  Emblements 300 

227.  Rule  of  Assets  applied  to  Fixtures 302 

22J  a.  Rule  of  Assets  applied  to  Severance  of  Land  Products,  etc.  305 

228.  Rule  as  to  Foreign  Assets 305 

CHAPTER  II. 

INVENTORY   OF   THE   ESTATE. 

§  229.  Inventory  required  formerly  in  England ;  Custom  fallen  into 

Disuse 306 

230.  Inventory  required  in  American  Practice;   whether  Indispen- 

sable      307 

231.  Dispensing  with  an  Inventory  after  Lapse  of  Time     ....     309 

232.  Qualified  Representative  not  exempt  from  rendering  an  In- 

ventory       310 

233.  234.  What  the  Inventory  should  contain 310,  313 

235.  Assets  and   Inventory  in  Special   Instances;   Co-ownership, 

etc 314 

236.  Effect  of  the  Inventory ;  Power  of  the  Local  Probate  Court  to 

alter,  etc.;   Inventory  as  Evidence 314 

237.  Advantages  of  returning  an  Inventory 317 


TABLE   OF    CONTENTS.  XVli 


PART     IV. 

GENERAL    POWERS,    DUTIES,    AND     LIABILITIES    OF    EXECUTORS 
AND    ADMINISTRATORS    AS    TO    PERSONAL    ASSETS. 

CHAPTER    I. 

representative's   title   and   authority   IN   GENERAL. 

PAGE 

§  238.  Title  to  Personal  Property  devolves  upon  Representative  by 

Relation  from  Decedent's  Death 318 

239.  The  Representative's  Title  and  Authority  during  the  Admin- 

istration excludes  that  of  all  Others  in  Interest 319 

240.  Executor  or  Administrator  has  a  Right  to  dispose  of  Personal 

Assets 320 

241.  The  same    Subject;    Executors   and   Administrators   distin- 

guished in  this  Respect 320 

242.  But  Title,  etc.,  of  Executor  or  Administrator  is  by  Way  of 

Trust 321 

243.  Identity  of  Assets  should  be  preserved  Apart  from  the  Rep- 

resentative's  Private   Funds,  so  as  to  preserve  the  Title 
intact 322 

244.  No  Title  is  taken  by  Representative,  to  Property  held   by 

Decedent  in  Another's  Right 323 

245.  Representative  does  not   succeed  to  Decedent's  Trusts,  but 

should  close  the  Accounts 324 

246.  How  One  ceases  to  hold  Assets  as  Representative,  so  as  to 

hold  in  his  Individual  Character ;  Election,  etc 325 

247.  Devolution  of  Title  where  the  Personal  Representative  is  also 

Guardian  of  Decedent's   Children   or   Trustee   under   the 
Will -325 

248.  Devolution  of  Title  where  Representative  is  also  a  Legatee 

or  Distributee 328 

249.  Devolution  of  Title  where  Executor  is  also  Residuary  Devisee 

and  Legatee 328 

250.  Executor  should  administer  Estate  undisposed  of  under  the 

Will  where  there  is  a  Partial  Intestacy 328 

251.  Right  and  Duty  of  discharging  Contract  Liabilities,  etc.,  of 

Deceased 328 

252.  Avoidance,    etc.,   of    Contracts    by   the    Deceased    Illegally 

made,  etc 329 

253.  Contracts  Personal  to  the  Deceased,  etc.,  distinguished  from 

those  requiring  Performance  after  his  Death 330 

254.  Personal    Liability   of   the    Representative   upon   the    Dece- 

dent's Debts  or  Contracts 331 


XVlll  TABLE    OF    CONTENTS. 

PAGE 
§  255.  The  same  Subject;  how  such  Liability  is  incurred;  Stitute 

of  Frauds  ;  Sufficient  Consideration,  etc 331 

256.  The  Representative's  own  Creation  of  a  Debt  binds  himself 

and  not  the  Estate 333 

257.  Lien  on  the  Assets  is  for  Representative  rather  than  for  the 

Person  deaUng  with  him  ;  Estate  how  far  Answerable     .     .     335 

258.  The  same  Subject;    Negotiable  Notes,  etc.,  running  to  the 

Executor  or  Administrator ;  Other  Instances 336 

259.  Lien  on  the  Assets,   how   far  existing   for  the    Representa- 

tive's own  Immunity 337 

260.  This  Rule  of  Lien  applied  in  settling  Account  of  a  Represen- 

tative Deceased,  Removed^  etc 338 

261.  Assets   recovered  by  Representative    on   his    own   Contract 

enure  to  the  Estate .     339 

262.  The  Estate  should   not  derive   Unconscientious  Advantage, 

etc 340 

263.  Whether  Admissions  by  Representatives  bind  the  Estate      .     340 

264.  Representative's    Power   over  Assets  whether  controlled   by 

Probate  or  Equity  Courts 340 

265.  Interpleader,    etc.,    for   Instructions,    etc.,    by   the    Personal 

Representative 341 

266.  Representative  not  a  Proper  Party  to  Suits  for  annulling  a 

Marriage 342 

267.  Vesting  of  Possession ;  Chattels  Real,  etc.,  as  distinguished 

from  Chattels  Personal 342 

268.  Whether  the  Representative  may  act  by  Attorney     ....     343 
268  a.  No  Property  in  the  Body  of  the  Intestate 343 

CHAPTER   II. 

COLLECTION   OF   THE   ASSETS. 

§  269.  General  Duty  of  Executor  or  Administrator  to   collect   the 

Effects,  etc 345 

270.  Statute  Methods  for  discovering  Assets  in  Aid  of  the  Repre- 

sentative's Pursuit 346 

271.  Special  Statute  Proceedings  against  Intermeddlers  with  the 

Assets,  etc 347 

272.  Power  of  Executor  or  Administrator  to  enter  Premises,  force 

Locks,  etc.,  in  pursuit  of  Assets 348 

273.  Duty  to  pursue  or  collect  depends  upon  Means  at  Represen- 

tative's Disposal 351 

274.  Duty  to  pursue  or  collect  depends  also  upon  Sperate  or  Des- 

perate Character  of  the  Claims 35 1 

275.  Duty  to  pursue  or  collect  depends  also  upon  Representative's 

Means  of  Knowledge 352 


TABLE    OF    CONTENTS.  XIX 

I'ACE 

§  276.  Legatees,  Creditors,  etc.,   have    no    Right   to   hold    against 

Representative 352 

277.  Suing  to  recover  Assets ;  Actions  founded  in  Contract,  Duty, 

etc.,  survive 353 

278.  Survival  of  Actions  founded  in  Contract;  Exceptions  to  Rule     354 

279.  2S0.  Actions  founded  in  an  Injury  to  Person  or  Property  died 

with    the  Person   at   Common    Law ;    Later  Variations  of 
this  Rule 354,  356 

281.  The  same  Subject;  Replevin,  Detinue,  etc.,  by  the  Repre- 

sentative      358 

282.  The  same  Subject ;  Modern  Statutes  affecting  the  Rule     .     .  359 

283.  The  same  Subject ;  Action  for  Damages  in  causing  Death      .  360 

284.  The   same    Subject ;    Actions    founded   on  Wrongs  done  to 

Real  Estate,  etc 362 

285.  Actions  upon  Covenants  Real,  etc, ;  whether  Representative 

may  sue 363 

286.  The  same  Subject ;  Breach  of  Covenant  in  Deed  or  Lease     .  365 

287.  Action  for  disturbing  Possession  ;  Pew,  Lease,  etc 365 

288.  In  General,  Personal  Representative  sues  for  Assets  of  the 

Estate 366 

289.  Suits,  whether  to  be  brought  by  Representative  in  his  own 

Name,  or  as  Representative 366 

290.  The  same  Subject ;  General  Principle  as  to  suing  in  Repre- 

sentative's Individual  or  Ofificial  Name 367 

291.  This    Principle    applied   in   suing   for   Torts    affecting    the 

Property 368 

292.  Suits  on  Contracts  made  with  the  Representative     ....     369 

293.  Suit  by  Representative  on  Promissory  Note  or  other  Negotia- 

ble Instrument 370 

294.  General  Conclusion  as  to  suing  upon  Contracts  in  the  Indi- 

vidual or  Representative  Character 371 

295.  Prosecution  of  Suits  in  Equity  by  the  Personal  Representa- 

tive   372 

296.  Proceedings  to  obtain  Possession  of  Specific  Negotiable  In- 

struments, etc.,  belonging  to  the  Estate 373 

297.  Pursuit  of  Assets  where  Decedent  fraudulently  transferred     .  373 

298.  Representative's  Power  to  Compromise  or  Arbitrate  ....  374 

299.  Effect  of  Contract  or  Covenant  to  the  Decedent,  which  did 

not  name  his  Executors,  Administrators,  etc 374 

300.  The  same  Subject :   Effect  where  the  Expression  "  Assigns," 

"  Next  of  Kin,"  "  Heirs,"  etc.,  is  used 375 

301.  Right  of  Representative  to  distrain  or  sue  for  Rent  in  Arrears     376 

302.  Rights    of  Personal    Representative   upon  Conditions   made 

with  the  Deceased 377 

303.  Right  accruing  to   Personal   Representative   by  Chattel  Re- 

mainder, etc ,    .     I     f     t     .     .     ,     'm 


XX  TABLE    OF    CONTENTS, 

PAGE 

§  304.  Right  accruing  to  Personal  Representative  in  his  Time  and 

after  the  Decedent's  death 377 

305.  Rights  of  Personal  Representative  as  to  Pledge,  Collateral 

Security,  etc 378 

306.  Collection  of  Debts  with  Security ;  changing  or  renewing  the 

Security 379 

307.  Gathering  the  Crop  or  Emblements 380 

308.  Want  of  Diligence  or  Good  Faith  in  collecting  Assets  .     .     .  380 
.309.  Collection  of  Interest-bearing  Debts ;  Usury,  etc 381 

310.  What  may  be  taken  in  Payment ;  Private  Arrangements  with 

Debtor,  etc 382 

311.  Liability  where  Property  is  taken  or  Money  collected  by  Mis- 

take as  Assets 383 

311a.  Effect  of  Payment,  etc 383 


CHAPTER   III. 

CARE,    CUSTODY,    AND   MANAGEMENT  OF  THE   ASSETS. 

§  312.  Care,  Custody,    and   Management   of  Assets   an.  Important 

Function 384 

313.  Executor  or  Administrator  how  far  regarded  as  a  Bailee  in 

Respect  of  Responsibility 384 

314.  As  to  Care  and  Custody;  Responsibility  of  Executor  or  Ad- 

ministrator like  that  of  the  Bailee 385 

315.  The  same  Subject,  whether  this  Responsibility  is  that  of  a 

Gratuitous  Bailee  or  a  Bailee  with  Recompense      ....     386 

316.  Liability  of  Personal  Representative  in  the  General  Manage- 

ment of  Estate 387 

317.  Management  of  the  Estate;  Collection  of  Income,  etc.;  Re- 

sponsibility of  the  Representative 388 

317a.  As  between  Investing  Cash  or  Using  it  for  Payments,  De- 
posits, etc 389 

318.  Paying  Assessments,  discharging  Liens,  etc.,  upon  Personal 

Assets 390 

319.  Personal  Representative's  Vote  upon  Stock 391 

320.  Putting  Assets   into  a  Salable   Condition,  etc. ;    Repairing, 

etc 391 

321.  Responsibility  of  Personal  Representative  for  Acts  of  his  own 

Agent,  Attorney,  etc 391 

322.  Duty  as  to  investing  Assets  or  placing  the  Funds  on  Interest     393 

323.  324.  Investments,  how  to  be  made,  etc. ;  Rule  of  Liability  395,  396 
325.  Liability  for  placing  or  leaving  Assets  in  Trade,  Speculation, 

etc 398 

325  a.  Closing  out  Decedent's  Business,  etc ,    400 


TABLE    OF    CONTENTS.  XXi 

PACK 

§  326.  Carrying  on  a  Trade  with  Assets ;  Liability,  etc 400 

327.  Sale,  Investment,  etc.,  of  Perishable  Assets 403 

328.  Rule  as  to  calling  in  Money  already  out  on  Loan  or  Invest- 

ment      403 

329.  Rule  as  to  making  Unauthorized  Loans  or  Investments     .     .     404 

330.  Representative's  Acts  are  for  Benefit  of  those  interested  in 

Estate  ;  Good  Faith,  etc.,  required 405 

331.  Assets  should  be  kept  distinct  from  Representative's  Own 

Property 406 

332.  Liability  qualified  where  Acts  are  performed  under  Advice 

and  Assent  of  the  Parties  in  Interest 406 

333.  Liability  qualified  where  Acts  are  performed  under  Direction 

of  the  Court 407 

334.  Rule  where  Control  is  taken  by  Court  out  of  Representative's 

Hands 407 

335.  Directions  of  a  Will  as  to  Investment,  etc.,  may  be  reason- 

ably followed  ;  Specific  Legacy,  etc 408 

335  a.  Lending  without  Security  or  on  Poor  Security 410 

336.  Summary  of  Doctrine  as  to  Management  and  Investment ; 

Deviations,  when  permitted 410 

337.  Management,  Investment,  etc.,  by  Executor  or  Administra- 

tor similar  to  that  by  Guardian,  Trustee,  etc 411 

338.  Election  to  charge  Representative  or  to  accept  the  Invest- 

ment   ,    , 411 


CHAPTER   IV. 

THE  representative's  POWER  TO  SELL,  TRANSFER,  AND  PURCHASE. 

339.  Representative's  Power  to  dispose  of  Assets 412 

340.  Sale  or  Transfer  can  only  be  made  while  the  Representative 

holds  Office 412 

341.  Whether  Assets  should  be  sold  at  Public  or  Private  Sale  .     .  413 

342.  Sale  of  Goods  bequeathed  for  Life  with  Remainder  over   .     .  413 

343.  Power  of  Representative  to  dispose  of  Chattels  specifically 

bequeathed 414 

344.  Sales  of  Perishable  Assets,  etc 414 

345.  Representative's  Sale  of  his  Decedent's  Business       ....  414 

346.  Sales  and  Transfers  of  Personal  Assets  under  Probate  Direc- 

tion       415 

347.  Authority  to  sell  or  transfer  as  affected  by  Expressions  in  the 

Will 418 

348.  Consulting  Parties  in  Interest,  as  to  the  Time,  Manner,  etc., 

of  Sale 419 

349.  Representative  may  pledge   or  mortgage  Assets  instead  of 

selling 419 


XXU  TABLE    OF    CONTENTS. 

PAGE 

§  350.   Bond  Fide  Purchaser,  Pledgee,  etc.,  not  bound  to  see  to 

Application  of  what  he  pays  or  advances 420 

351.  Letters  Testamentary  or  of  Administration  are  Credentials  of 

Authority  to  transfer,  etc 421 

352.  Good  Faith  and  Caution  requisite  from  Purchaser,  Pledgee, 

etc.,  in  dealing  with  Personal  Representative 421 

353.  Disposal  of  Chattels  Real ;  assigning  and  underletting  Leases     423 

354.  Restraints  upon  the  Power  to  dispose  of  Assets  as  concerns 

the  Representative  himself 424 

355.  Representative's  Liability  for  Negligence,  Fraud,  etc.,  in  the 

Sale  of  Assets 425 

356.  The  same  Subject ;    obtaining  Payment  or  taking   Security 

for  the  Purchase-Money 426 

357.  Collusive  or  Fraudulent  Disposition  of  Assets  by  the  Repre- 

sentative   427 

358.  Purchase  by  a  Representative  at  his  Own  Sale,  etc.       .     .     •     428 

359.  Re-opening   the   Representative's  Voidable   Transfer,    etc. ; 

Relief  as  against  Third  Parties 431 

360.  Personal    Representative    cannot  avoid   his   Own   Voidable 

Transfer,  etc 432 

361.  Whether  the  Representative  warrants  Title  when  he  sells  .     .     432 

362.  Sales  of  Negotiable  Instruments  by  the  Representative  .  .  434 
363,363  a.  Representative's  Authority  to  purchase .  .  •  .  436,437 
364.    No  Authority  to  give  away  Assets 437 

CHAPTER  V. 

LIABILITY   OF   AN   EXECUTOR   OR   ADMINISTRATOR. 

§365.    Liability  in  Respect  of  Acts  of  Deceased  or  his  Own  Acts      .     438 

366.  Liability  in  Respect  of  Acts  of  Deceased ;    Survival  of  Ac- 

tions against  the  Decedent  founded  in  Contract    ....    438 

367.  The  same  Subject ;  Exception  as  to  Personal  Contracts  of 

the  Deceased 439 

368.  The  same  Subject ;   Distinction  between  Gifts  and  Contracts     442 

369.  The  same  Subject ;    Form  of  Action  sometimes  Material  in 

this  Connection 442 

370.  Survival  of  Actions  against  Deceased  founded  in  Tort,  not 

permitted  at  Common  Law 443 

•  371.   The   same    Subject;    whether   Replevin  can  be  maintained 

against  the  Representative 444 

372.  The  same  Subject ;    whether  Other  Remedies  might  be  ap- 

plied because  of  the  Tort 445 

373.  Modern    Statutes   enlarge    the    Survival  of  Actions   against 

Decedent 445 

374.  Survival  of  Actions  for  Rent  or  Damage  to  Real  Estate     .     .     446 


TABLE    OF    CONTENTS.  XXUl 

PAGE 

375.  Liability  of  Representative  on  Covenants  of  his  Decedent; 

Covenants  under  Lease,  etc 447 

376.  Liability  of  the  Personal  Representative  for  Rent  ...         .     449 

377.  Liability  of  Representative  on  Covenants   concerning  Real 

Estate,  etc 452 

378.  Liability  of  Representative  on  Joint  or  Several,  etc.,  Con- 

tracts of  Decedent 452 

379.  Liability  of  Representative  of  Deceased  Partner 453 

380.  Liability  of  Representative  of  Deceased  Stockholder     .     .     .  454 

381.  Exoneration  of  Personal  Property  specifically  bequeathed  .     .  455 

382.  Liability  of  Personal  Representative  in  Respect  of  his  Own 

Acts  ;  Negligence  or  Bad  Faith,  etc 456 

383.  Common-Law  Doctrine  as  to  Devastavit  or  Waste  ....     457 

384.  The  Essential  Principle  of  Devastavit  is  of  General  Appli- 

cation   458 

385.  Representative  not  to  be  sued  in  such  Capacity  for  his  Own 

Wrongful  Act ;  Qualifications  of  the  Rule 459 

386.  Instances  of  Devastavit  considered;  Effect  of  an  Arbitration 

or  Compromise  of  Demands 460 

387.  Compromise  or  Arbitration  of  Claims  ;  Modern  Statutes    .     .     461 

388.  Release  of  Debt,  Renewals,   etc.,  by  the  Executor  or  Ad- 

ministrator      463 

389.  Disregarding  the  Bar  of  Limitations ;  General  and  Special 

Statutes  of  Limitations 464 

390.  390  a,  b.  General  and  Special  Statutes  of  Limitation  ;  the  Sub- 

ject continued 465,  467,  469 

391.  Opportunity  to  ascertain  whether  the  Estate  is  Insolvent  .     .     470 

392.  \x\sX-AX^Q.^%  Qi  Devastavit  continued;  disregarding  the  Statute 

of  Frauds 470 

393.  Devastavit  when    excused   by   Concurrence,    Acquiescence, 

etc.,  of  those  injured  thereby 47° 

394.  Complicity  of  Third  Persons  in  the  Devastavit  renders  them 

liable 47i 

395.  Liability  of  Executor  or  Administrator  on  his  own  Contracts  .     471 

396.  Representative  how  sued  upon  his  Express  Promise,  Collat- 

eral Undertaking,  etc 473 

397.  Representative  liable  as  an  Individual,  where  Cause  of  Action 

wholly  accrued  after  his  Decedent's  Death,  on  Transac- 
tions with  him,  etc 473 

398.  Exceptional  Instance  of  suing  for  Funeral  Expenses,  etc.  .     .     474 
398a.  Liability  of  Executor  or  Administrator  on  Negotiable  Instru- 
ments   475 


XXIV  TABLE   OF    CONTENTS. 

CHAPTER  VI. 

CO-ADMINISTRATION   AND   QUALIFIED   ADMINISTRATION. 

PAGE 

§   399.  Doctrines  of  foregoing  Chapters  apply  to  Qualified  Trusts      .  477 
400,401.  Rights,  Duties,  and  Liabilities  of  Co-Executors;    their 

Title  and  Authority 477,  480 

402.  Co-Executors;  their  Liability,  etc 481 

403.  Co-Executors  ;  Actions  by  and  against 487 

404.  Rights,  Duties,  and  Liabilities  of  Co-Administrators     .     .     .  489 

405.  Survivorship  among  Co-Executors  or  Co-Administrators  .     .  489 

406.  Liability  of  Co-Executors  and  Co-Administrators  on  Bonds ; 

Joint  or  Several  Bonds 491 

407.  Rights,   Duties,  and   Liabilities  of  Administrator  with   the 

Will  annexed 492 

408.  409.  Rights,  Duties,  and  Liabilities  of  an  Administrator  de 

Bonis  non 494,  497 

410.  The  same  Subject;   Relation  oi  KCi.m\ms,\x7!Xox  de  Bonis  tion 

to  his  Predecessor's  Contracts,  etc 500 

411.  Suit  on  Negotiable  Instrument  as  concerns  Administration 

de  Bonis  non * .     .     .     503 

412.  Administrator  de  Bonis  non  bound  to  observe  Good  Faith 

and  Prudence,  like  Other  Administrators 504 

413.  Administrator  de  Bonis  non  with  Will  annexed 505 

414.  Rights,  Duties,  and    Liabilities   of  Temporary  and    Special 

Administrators,  etc 505 

415.  Validity  of  Qualified  Representative's  Acts  does  not  depend 

upon  his  Own  Designation  of  the  Office 506 

416.  Negligence,  etc.,  by  Various  Representatives  in  Succession   .     506 


PART  V. 

PAYMENTS   AND    DISTRIBUTION. 
CHAPTER  I. 

DEBTS  AND   CLAIMS   UPON   THE   ESTATE. 

§  417.  Executor  or  Administrator  is  bound  to  pay  Debts,  Claims, 

etc. 508 

418,419.  Notice  of  Appointment;  Presentation  of  Claims  ;  Statutes 

"  of  Special  Limitations 509,512 


TABLE    OF    CONTENTS.  XXV 

PAGE 

420.  Presentation  of  Claims ;  Statute  Methods  considered    .     .     .  513 

421.  Funeral  Charges  and  their  Priority 516 

422.  Funeral  Charges ;  Place  of  Final  Interment,  Gravestone,  etc.  520 

423.  Other  Preferred  Claims  ;  Administration  Charges ;  Debts  of 

Last  Sickness 524 

424.  These  Preferred  Claims  rank  together ;  Settlement  in  Full  or 

Ratably 525 

425.  General  Payment  of  Debts  ;  Rule  of  Priority 525 

426.  427.  Rules  of  Priority;  English  Classes  enumerated      .     .  526,  528 

428.  Rules  of  Priority ;  American  Classes  enumerated      .     .     .     .  529 

429.  Claims  grounded  in  a  Tort ;  Damages,  etc. ;  how  ranked    .     .  533 

430.  Mortgage  Debts  ;  Rights  of  Creditors  having  Security  .     .     .  534 

431.  Invalid  or  Exorbitant  Claims ;  Voluntary  Transactions      .     .  536 

432.  Claims  of  Persons  disappointed  of  a  Legacy 537 

433.  Decree  or  Order  for  Payment 538 

434.  Commissioners  or  Auditors  to  examine  Claims 538 

435.  Exhaustion  of  Assets  in  paying  Superior  Claims ;  Preferences 

to  be  observed ;  Representation  of  Insolvency 539 

436.  Notice  of  Debts  as  affecting  their  PajTnent  with  due  Prefer- 

ences; English  Rule 540 

437.  The   same  Subject;    English  Rule   as   to   Equal   Creditors; 

Creditors'  Bill,  etc 541 

438.  The  same  Subject ;  American  Rule 543 

439,439^2.  Debt  due  the  Representative  from  the  Estate;  Right  to 

Retain,  etc 544,  547 

440.  Interest  on  Claims  presented 547 

441.  Mode  of  paying  off  Claims  ;  Extinguishment,  etc 547 

442.  Personal  Liability,  of  Representative  for  Debts 548 

443.  Payment,    or  Advancement,   out    of    Representative's    Own 

Funds 548 

444.  Recovery  of  Over-Payment  from  Creditor 549 

445.  When  Heirs  or  Next  of  Kin,  etc.,  are  liable  for  Debts  of  the 

Deceased 549 

446.  Payment  of  Debts  and  Claims  where  the  Estate  proves  In- 

solvent    550 

446a.  Ancillary  and  Foreign  Administration;  Payment  of  Debts  .  551 

446 <J.  New  Assets  for  Payment  of  Debts 551 


CHAPTER   II. 

SPECIAL   ALLOWANCES   TO   WIDOWS   AND   MINOR   CHILDREN. 

§  447.  Wife's  Paraphernalia,  Separate  Property,  etc.,  do  not  enter 

into  Administration  of  Husband's  Estate 552 

448.  Widow's  Allowance  under  Modern  Statutes 552 

449.  Widow's  Allowance ;  whether  confined  to  Cases  of  Distress  553 


XXvi  TABLE    OF    CONTENTS. 

PAGE 

450.  Maintenance  for  a  Particular  Period  sometimes  specified     .     .  554 

45 1 .  Precedence  of  Widow's  Allowance  over  Other  Claims  ;  whether 

independent   of    Distribution,  etc. ;    Effect  of  Decedent's 

Insolvency •  .  555 

452.  Decree  of  Allowance,  etc.,  how  enforced 557 

453.  Widow's  Allowance,  how  barred 557 

454.  Widow's  Allowance ;  Effect  of  her  Death  or  Remarriage  be- 

fore a  Grant 558 

455.  Allowance  to  Minor  Children 558 

456.  Specific  Articles  of  Personalty  allowed  Widow  and  Children ; 

Exempt  Chattels,  etc 559 

457.  Use  of  Dwelling  House ;  Widow's  Quarantine 561 

457^;.  Widow's  Election  to  take  against  her  Husband's  Will  .     .     .  562 


CHAPTER   in. 

LEGACIES,    THEIR   NATURE   AND   INCIDENTS. 

§  458.  This  Subject  a  Branch  of  the  Law  of  Wills 563 

459.  Legacy    defined ;    Executor    under  a   Will    should    Pay   or 

Deliver 563 

460.  Description  of  the  Legatee,  and  who  may  be  such    ....  564 

461.  Subject-Matter    of    Legacies;    Specific    distinguished    from 

General  Legacies 565 

462.  Whether  a  Residuary  Bequest  can  be  deemed  Specific  .     .     .  567 

463.  Bequests  for  Illegal  and  Immoral  Purposes  void ;   Supersti- 

tious Uses,  etc 568 

464.  Bequests  to  Charitable  Uses  ;  Statute  of  43  Elizabeth,  c.  4    .  569 

465.  Bequest  void  for  Uncertainty;  or  where  Principal  or  Income 

is  locked  up  too  long 570 

466.  Legacies  Absolute  or  Conditional,  Vested  or  Contingent   .     .  571 

467.  Lapsed  Legacies;  General  Rule 572 

468.  Cumulative  Legacies;  Repetition  or  Substitution  of  Legacies  573 

469.  Satisfaction  of  Debts  or  Portions  by  Legacies 574 

470.  Release  of  Debts  by  Legacies 574 

471.  Ademption  of  Legacies 576 

472.  Trustees  under  a  Will;    Equity  and   Probate   Jurisdiction; 

Duties  of  a  Trustee  ;  Equity ;  Probate  Procedure      .     .     .  576 

473.  Construction  of  Wills  and  Legacies;  Bill  of  Interpleader  to 

remove  Doubts,  etc 577 

474.  Construction  of  Wills,  Legacies,  etc 579 

475.  Doubtful  Points  settled  by  the  Agreement  of  all  Parties  in 

Interest 580 


TABLE   OF    CONTENTS.  XXVll 

CHAPTER   IV. 

PAYMENT  AND   SATISFACTION   OF   LEGACIES. 

PAGE 

§  476.  Payment,  etc.,  of  Legacies  by  the  Executor;  All  Valid  Legal 

Claims  take  Precedence 581 

477.  Executor's  Bond  of  Indemnity  from  Legatees 582 

478.  Legacies  are  usually  Payable  within  a  Year  from  Testator's 

Death 583 

479.  When    the   Legatee's  Right  vests ;    Rule   as   to  Annuitants, 

Beneficiaries  for  Life,  etc 584 

480.  Interest  and  Produce  of  Specific  Legacies 585 

481.  Interest  on  General  Legacies 586 

482.  Interest  on   Legacies  to  Children,  Widow,  etc.;  and  Other 

Special  Instances 5^^ 

483.  To  whom    Legacies   should  be   Paid ;    Deceased   Legatees ; 

Infants,  Insane  Persons,  etc 589 

484.  To  whom  Legacies  should  be  Paid ;  Absentees,  Persons  not 

known,  etc.         5^9 

485.  To  whom    Legacies   should   be    Paid ;    Testamentary    Trus- 

tees, etc 590 

486.  Delivery  of  Specific  Legacies  ;  Legatee's  Right  to  Select   .     .  591 

487.  Method  of  Paying  General  Legacies  ;  Currency,  etc.      .     .     .  592 

488.  Assent  of  the  Executor  to  a  Legacy 592 

489.  Legatee's  Assent  to  the  Legacy 595 

490.  Abatement  of  Legacies  in  Case  of  Deficient  Assets  ....  595 

491.  The  Refunding  of  Legacies  after  their  Payment 597 

CHAPTER   V. 

PAYMENT  AND   DISTRIBUTION   OF   THE   RESIDUE. 

§  492.  Residue   of  Personal   Estate  goes  according  to  Testacy  or 

Intestacy  of  Deceased 600 

493.  I.  As  to  the  Residue  in  Case  of  Testacy 600 

494.  Right  of  the  Executor  where  there  is  no  Residuary  Legatee 

named 6or 

495.  II.  As   to   the    Residue   in   Case   of  Intestacy;   Statutes  of 

Distribution 602 

496.  Surviving  Husband's  Right  to  the  Residue  of  his  Deceased 

Wife's  Personalty 604 

497.  Surviving  Wife's  Rights  in  the  Distribution  of  her  Deceased 

Husband's  Personalty 605 

498.  Rights  of  Children  and  Lineal  Descendants  in  Distribution    .     605 

499.  500.  Advancements  to  Children ;  how  reckoned  in  Distribu- 

tion       607,  608 


XXVlll  TABLE    OF    CONTENTS. 

PAGE 

§  501,502.  General  Distribution  among  the  Next  of  Kin     .     .     .610,612 

503.  Distribution  where  there  is  no  Known  Husband,  Widow,  or 

Next  of  Kin 612 

504.  Time  and  Method  of  Distribution 613 

504a.  The  same  Subject ;  Decree  of  Distribution 615 

505.  Distribution  where  Real  Estate  has  been  sold  to  pay  Debts    .  615 

506.  Whether  Distribution  may  be  of  Specific  Chattels  not  reduced 

to  Cash 615 

507.  Death  of  Distributee  pending  Distribution 617 

508.  Distribution;  Refunding  Bond,  Contribution,  etc 617 


PART   VI. 

GENERAL     POWERS,     DUTIES,     AND     LIABILITIES      OF      EXECU- 
TORS   AND     ADMINISTRATORS     AS     TO     REAL     ESTATE. 

CHAPTER   I. 
representative's  title  and  authority  in  general. 

§  509.  No  Inherent  Authority  or  Title  as  to  Decedent's  Real  Estate  .     619 

510.  Rule  where  Representative  collects  Rents,  manages,  etc.  .     .     621 

511.  Sale  of  Real  Estate  under  Power  or  to  pay  Debts,  Legacies, 

etc 622 

512.  Exoneration  of  Real  Estate  by  the  Personal ;  and  Marshalling 

Assets 623 

512  a.  Dealing  with  Mortgages  on  Real  Estate 624 

512^.  Charges  and  Allowances  with  Reference  to  Real  Estate    .     .     625 

CHAPTER   II. 
statute  sales  or  mortgages  under  judicial  license. 

§  513.  Modern  Legislation  permitting  Sales  under  a  Judicial  License    626 

514.  License  restricted  to  such  Land  as  may  be  needful ;  Rights  of 

Heirs  and  Devisees  respected ;  Qualifications  of  Rule,  etc.     627 

515.  Legislative  Provisions  as  to  Sale;  Essentials  of  a  Purchaser's 

Title 628 

51 5  a;.  Principal  and  Ancillary  Administration 629 

516.  Judicial  License  to  mortgage  Real  Estate  for  Certain   Pur- 

poses     630 

517.  Levy  of  Execution  obtained  against  the  Representative     .     .     630 


TABLE    OF    CONTENTS.  XXIX 

PART    VII. 
ACCOUNTING    AND    ALLOWANCES. 

CHAPTER    I. 

ACCOUNTS  OF   EXECUTORS  AND  ADMINISTRATORS. 

PAGE 

518.  Obligation    to    keep    Accounts;    Equitable    Jurisdiction    in 

England 631 

519.  The  same  Subject;  Creditors'  Bills,  etc.;  English  Practice    .  632 

520.  The  same  Subject ;  Creditors'  Bills,  etc.,  in  American  Practice  634 

521.  Ecclesiastical  and  Probate  Jurisdiction  of  Accounts  in  England  636 

522.  Probate  Jurisdiction  of  Accounts  in  the  United  States  .     .     .  639 

523.  Citation  of  Parties  interested  in  the  Account,  in  American 

Probate  Practice  ;  their  Assent  to  its  Allowance    ....     642 

524.  The  Form  of  Administration  Account 643 

525.  Authentication  and  Proof  of  Account  in  American  Probate 

Practice 644 

526.  Periodical  Returns  ;  Partial  Accounts  and  the  Final  Account      647 

527.  Settlement  upon  a  Final  Accounting ;  Distribution,  etc.     .     .     651 

528.  Conclusiveness  of  the  Final  Settlement  in  the  Probate  Court      653 

529.  Perpetuating  Evidence  of  Distribution  and  procuring  a  Final 

Discharge 655 

530.  Appellate  Jurisdiction  as  to  Probate  Accounting 655 

531.  Rendering  Accounts   in   Case   of  Death,   Resignation,   Re- 

moval, etc.,  of  Representative 657 

532.  Accounts  by  Co-Executors  or  Co-Administrators,  Temporary 

Administrators,  etc 658 

533.  Effect  of  Lapse  of  Time,  etc.,  upon  Accounts 659 

534.  No  Account  required  from  Residuary  Legatee  giving  Bond  to 

pay  Debts,  etc 660 


CHAPTER   n. 

CHARGES   AND   ALLOWANCES   UPON   ACCOUNTING. 

§  535-   What  is  to  be  charged   to   the   Representative,  and   what 

allowed  him 661 

536.  Representative  should  charge  himself  with  Inventory  Valua- 

tion as  a  Basis  ;  Corrections  of  Value,  etc 661 

537.  Amounts  to  be  added  ;  Representative  charged  with  Personal 

Assets  not  inventoried;  Profits,  Income,  Premiums,  Inter- 
est, etc 662 


XXX  TABLE    OF    CONTENTS. 

PAGE 

§  538.   Charging  the  Representative  with  Interest 663 

539.  Charges  on  Account  as  concerns  Real  Estate  or  its  Proceeds 

or  Profits 666 

540.  Charges  on  Account ;  Miscellaneous  Points 667 

541.  Allowances  to  the  Representative;   Disbursements,  Losses, 

etc 667 

542.  Allowances  to  the  Representative ;    Subject  continued ;   his 

Reasonable  Expenses,  etc. 669 

543.  Expenses  of  Education,  Maintenance,  Advancements,  etc.     .  673 

544.  Allowance  of  Counsel  Fees,  Costs,  etc 674 

545.  Compensation  of  Executors  and  Administrators 676 

546.  General  Matters  as  to  Charges  and  Allowances ;  Bequest  in 

Lieu,  etc 680 

547.  Accounts  and  Allowances,  as  to  Foreign  Assets 681 


Appendix  :   Remedies  by  and  against  Executors  and  Admin- 
istrators        683 

Table  of  Consanguinity • 686 

Index 687 


TABLE   OF   CASES. 


A. 

Section 

Section 

Allen  V.  Maer 

390 

Abbay  v.  Hill 

418 

V.  Simons 

120 

Abbott  V.  Abbott 

81,  139 

V.  Shriver 

541 

V.  Miller 

176 

Allison  V.  Allison 

70 

V.  Parfitt 

292 

V.  Davidson 

428 

V.  Tenney 

220 

Allsup  V.  Allsup 

173 

Abel  V.  Love 

118 

AUwood  V.  Heywood 

225 

Able  V.  Chandler 

262,  361 

Alsop  V.  Mather 

32s 

Abraham  v.  Wilkins 

74 

Alston  V.  Alston 

403 

Acey  V.  Simpson 

490 

V.  Cohen 

239 

Ackerley  v.  Oldham 

196 

V.  Munford 

247 

Ackerman  v.  Emott 

329 

Altemus's  Case 

98 

Adair  v.  Brimmer 

208,  402,  541 

Alter  V.  O'Brien 

430 

Adams  v.  Adams       167, 

230,  233,  395, 

Alton  V.  Midland  R. 

280,  366 

451 

454,  500,  520 

Alvord  V.  Marsh 

195.  310 

V.  Field 

74.  75 

American  Board's  Appeal 

408,  409 

V.  Cleaves 

407 

Ames  V.  Armstrong 

402 

V.  Williams 

282 

V.  Downing 

236 

Adamson,  Goods  of 

37 

V.  Jackson 

419 

Addams  v.  Ferick 

381 

Anderson  v.  Arnold 

279 

Adee  v.  Campbell 

502 

V.  Earle 

402 

Aiken  v.  Bridgman 

403 

V.  Fox 

358 

V.  Dunlap 

438 

V.  Miller 

412 

Ainslie  v.  Radcliff 

428 

V.  Piercy 

272,  308 

Aird,  Goods  of 

40 

V.  Potter 

III 

Airhart  v.  Murphy 

32,  106 

Andrews  v.  Brumfield 

506 

Aitkin  v.  Ford 

"5 

V.  Carr 

154 

Ake's  Appeal 

527 

V.  Hartford  R. 

391 

Albright  v.  Cobb 

119 

V.  Huckabee 

399 

Aldrich,  Appellant 

160 

V.  Hunneman 

488 

Aldridge  v.  McClelland 

155 

V.  Sparhawk 

347 

Alexander  v.  Barfield 

120 

V.  Stockdale 

405 

V.  Fisher 

508 

V.  Tucker 

54,  234,  273 

V.  Kelso 

186,  387 

Androvin  v.  Poilblanc 

37 

V.  Raney 

409,  410 

Angerstein  v.  Martin 

479 

V.  Stewart 

128,  408,  412 

Annin  v.  Vandoren 

265 

Alfriend  v.  Daniel 

193 

Ansley  v.  Baker 

184,  190 

Alger  V.  Colwell 

138 

Apperson  v.  Bolton 

27.  173.  179 

Allaire  v.  Allaire 

88 

Applegate  v.  Cameron 

236 

Allen  V.  Anderson 

277 

Apple's  Estate 

16 

V.  Dundas 

160 

Apreece  v.  Apreece 

461,  490 

V.  Edwards 

470 

Areson  v.  Areson 

474 

V.  Graffins 

256,  258 

Armstrong  v.  Baker 

^7 

V.  Hubbard 

537 

V.  Burnet 

381 

V.  Kellam 

515 

V.  Stovall 

262 

V.  Kimball 

186 

Arnold  v.  Arnold 

24,  170,  482 

V.  McPherson 

85 

V.  Babbitt 

146 

xxxu 


TABLE    OF    CASES. 


Section 

Arnold  v.  Downing  433 

V.  Mower  53° 

V.  Sabin  1I2,  115,  270 

V.  Smith  527 

V.  Spates  527 

Arrington  v.  Hair  41 1 

V.  McLemore  5^ 

Arthur  v.  Carrie  341 

Ashburn  v.  Ashburn  264 

Ashburnham  v.  Thompson  538 

Ashby  v.  Ashby  395 

Ashley  v.  Pocock  426,  437 

Ashmore,  Goods  of  77 

Ashurst  V.  Ashurst  430 

Aspden  v.  Nixon  174,  180 

Aspinwall  v.  Queen's  Proctor      23,  172 

Aston,  Goods  of  125 

Aston's  Estate  213 

Astor  V.  Hoyt  200,  218 

Astor,  Goods  of  57,  61,  87 

Atcheson  v.  Robertson  402 

Atkins  V.  Kinnan  366,  428 

V.  Tredgold  389 

Atkinson  v.  Barnard  124 

V.  Christian  141 

V.  Grey  427 

Atkison  z/.  Henry  217 

Atterbury  v.  Gill  373 

Attorney  General  v.  Bouwens  117,  175 

V.  Dimond  175 

V.  Hooper  494 

V.  Jesus  College  473 

V.  Kohler  II7 

V.  Partington  1 30 

V.  Robins  490 

Atwell  V.  Helm  137 

Aubuchon  v.  Lory  509 

Aurand  v.  Wilt  63 

Austin  V.  Austin  141 

V.  Lamar  526,  528 

V.  Munro  256,  397,  398 

Ayling,  Goods  of  66 

Ayres  v.  Clinefelter  46 

V.  Weed  32,  46 


Babbitt  v.  Brown 

120 

Babccck  v.  Booth 

195 

V.  Liliis 

428,  433 

Bacon  v.  Bacon 

321 

V.  Clark 

324.  329.  335 

V.  Howard 

334 

V.  Parker 

193 

V.  Pomeroy 

418 

V.   Thorp 

258,  390 

Badenach,  Goods  of 

46 

Bailev,  Goods  of 

40,  80,  126 

Bailey,  /ie 

74 

Section 

Bailey  J'.  Bailey 

59,  465 

V.  Blanchard 

525 

V.  Ekins 

429 

v.  Gould 

314 

V.  Hammond 

484 

V.  Miller 

187 

V.  Ormsby 

277 

V.  Scott 

155 

V.  Spofford 

401 

Bain  v.  Matteson 

407 

V.  Sadler 

221 

Bainbridge's  Appeal 

422 

Baines  v.  McGee 

354 

Baird's  Case 

380 

Baker  v.  Baker 

448,  451 

V.  Blood 

13 

V.  Brown 

391 

V.  Crandall 

283 

V.  Dening 

74 

V.  Fuller 

392 

V.  Moor 

397 

V.  Rust 

433 

V.  Woodbridge 

77 

Balch  V.  Hooper 

408 

V.  Symes 

53 

Baldwin  v.  Buford 

127,  153 

V.  Carter 

496 

V.  Dougherty 

417 

V.  Hatchett 

306 

V.  Standish 

141 

Baldwin's  Appeal 

179,  180,  181 

Bancroft  v.  Andrews 

128 

Bane  v.  Wick 

454 

Bank  v.  Dudley 

353.  509 

V.  Gibbs 

428 

Bank  of  Port  Gibson  v.  Baugh  402 

Bank  of  Troy  v.  Topping  258 

Bankhead  v.  Hubbard  137 

Banks  ?'.  Sherrod  80 

V.  Sladen  487 

Banta  v.  Moore  165,  173 

Bantz  V.  Bantz  526 

Barasien  v.  Odum  184,  190 

Barber  v.  Bush  106 

V.  Converse  II2 

Barbour  v.  Robertson  146 

Barcalow,  Matter  of  522 

Barcalow,  AV  545 

Barclay's  Estate  422 

Bard  v.  Wood  522 

Barden,  Goods  of  59,  60 

Bards  v.  Lamb  4^4 

Barfield  v.  King  39' 

Barker,  £x  far^e  109,160 

Barker,  Goods  of  112 

Barker  v.  Barker  325 

V.  Comins  79 

V.  Stanford  I46 

Barksdale  v.  Cobb  i44 

Barnard  v.  Gregory  186 


TABLE   01 

'   CASES. 

XXXlll 

Sect  ion 

Section 

Barnard  v.  Pumfrett 

4S8 

Beene  v.  Collenberger 

346,  361 

Barnawell  v.  Smith 

438 

Beer,  Goods  of 

43 

Barnes,  Goods  of 

42 

Beers  v.  Shannon 

24,  170 

Barnes  v.  Brashear 

175 

V.  Strohecker 

265 

V.  Hazleton 

500 

Belcher  v.  Belcher 

407 

V.  Underwood 

496 

Bell,  Goods  of 

36 

Barnett  v.  Guildford 

267 

Bell  V.  Armstrong 

69 

Barney  v.  Saunders 

545 

V.  Briggs 

422 

Barrett  v.  Barrett 

173 

V.  Hewitt 

368 

Barrington  v.  Tristram 

480 

V.  Speight 

408,  409 

Barron  v.  Burney 

184 

V.  Timiswood 

104 

V.  Vandvert 

293,410,411 

Bellamy,  Goods  of 

139 

Barry  v.  Boyle 

79 

Bellerjeau  v.  Kotts 

532 

V.  Lambert 

400 

Bellinger  t.  Ford 

194,  195 

V.  Rush 

397 

15ell()ws  V.  Goodal 

189 

Bartel's  Estate 

70 

Bells  V.  Nichols 

173 

Bartholomew  v.  Warner 

361 

Bemis  v.  Bemis 

419 

Bartlett  v.  Hyde 

120 

Benbow,  Goods  of 

69 

V.  Slater 

481 

Bench  v.  Bills 

5" 

Barton  v.  Barton 

528 

Bender  ?'.  Dietrick 

474 

V.  Cooke 

490 

Bengough  v.  Edridge 

465 

V.  Higgins 

173.  179 

Bennett,  Ex  parte 

35^ 

Barwick  v.  IMuUings 

62 

Bennett  v.  Bennett 

498 

Bass  V.  Chambliss 

310 

V.  Hannifin 

524 

Bassett  v.  Granger 

208 

V.  Ives 

184,  424 

V.  McKenna 

220,  221 

Benson  v.  Benson 

427 

Bate  V.  Bate 

545 

V.  Maude 

478 

Bateman  v.  Margerison 

195 

V.  Rice 

340 

Batton  V.  Allen 

500 

Bent's  Appeal 

60,  85,  463 

Batson  v.  Murrell 

389 

Berg  V.  Radcliff 

428 

Baucus  V.  Stover 

208,  542 

Berger  v.  Duff 

268 

Baxter  v.  Abbott 

81 

Berkey  v.  Judd 

142,  420 

V.  Baxter 

428 

Berry  v.  Bellows 

154,  155 

V.  Buck 

288,  293 

V.  Hamilton 

33 

V.  Gray 

368 

V.  Tait 

401 

Bay  V.  Cook 

500 

Betts  V.  Blackwell 

356 

Bayard,  Goods  of 

127 

Bewacorne  v.  Carter 

46 

Bayard  v.  Farmers'  Bank 

350.  351 

Biddle  v.  Wilkins 

173 

Bayley  v.  Bailey 

20,  171 

Bigelow  V.  Bigelow 

160 

Baylis  v.  Attorney  General                  38 

V.  Gillott 

84 

Beale  v.  Hall 

160 

V.  Morong 

502 

Beall  V.  New  Mexico 

408 

V.  Baton 

204 

Beanian  v.  Elliot 

173 

Billingslea  v.  Henry 

542 

Bean  v.  Bumpus           93, 

112,  120,  206 

V.  Young 

510 

V.  Chapman 

160 

Bills  V.  Scott 

148,  154 

V.  Smith 

359 

Bingham,  Ke 

531 

Bearzo  v.  Montgomery 

239 

V.  Crenshaw 

104,  196 

Beaston  v.  Farmers'  Bank 

428 

Binion  v.  Miller 

538 

Beattie  v.  Abercrombie 

239 

Binnerman  v.  Weaver 

106 

Beatty  v.  Dufief 

444 

Birch  V.  Dawson 

227 

Beaty  v.  Gingles 

256,  395.  397 

V.  Wright 

374 

Beck  V.  Rebow 

227 

Bird  V.  Jones 

159,  268 

Becker  v.  Hagar 

522 

Birdsall  v.  Hewlett 

481 

Becket  v.  Howe 

81 

Birkett,  Re 

484 

V.  Selover 

239 

Birkett  v.  Vendercom 

43 

Bective  v.  Hodgson 

217 

Bishop  V.  Bishop 

227,  509 

Bedell  v.  Constable 

43 

V.  Curphey 

211 

Beebe,  Matter  of 

270 

V.  I.alouette 

91 

Beebe  v.  Estabrook 

500 

Bizzey  v.  Might 

62 

Beecher  v.  Buckingham 

239,  240 

Black  V.  Dressell 

509 

XXXIV 


TABLE    OF    CASES. 


Section   | 

Section 

Black  V.  Whitall 

500 

Bostic  V.  Elliott 

406 

Blackborough  :■.  Davis 

103 

501 

Boston  V.  Boylston 

540 

Blackerby  v.  Holton 

504 

Boston  Packing  Co.  v.  Stevens 

385 

Blackington  v.  Blackington 

453 

Bothamley  v.  Sherson 

461 

Blackwell,  Goods  of 

37 

Bothomly  v.  Fairfax 

426 

Blake  v.  Blake 

220 

Boughton  V.  Bradley 

91 

V.  Dexter 

413 

V.  Flint 

525 

V.  Griswold 

283 

Boulware  v.  Hendricks 

148 

V.  Knight 

69 

Bourne  v.  Stevenson          230, 

234>  236 

V.  Pegram                    402, 

530, 

538 

Bovey  v.  Smith 

19 

V.  Ward 

528 

Bowditch  V.  Soltyk 

487 

Blanchard  v.  Blanchard 

77 

Bowdoin  v.  Holland    15,  I20, 

168,  186 

V.  Williamson 

420 

Bowen  v.  Montgomery 

308 

Bland  v.  Umstead 

253. 

367 

V.  Richardson 

403 

Blank,  Matter  of 

116 

V.  Shay 

341 

Blank's  Appeal 

443 

Bovvers  v.  I3owers 

112 

Blassingame  v.  Rose 

450 

V.  Keesecker 

200 

Blethen  v.  Towle 

227 

V.  Smith 

473 

Bligh  V.  Brent 

202 

V.  Williams 

428 

Blisset,  Goods  of 

127 

Bowerson's  Appeal 

99 

Block,  Succession  of 

100 

Bowes,  Re, 

224 

Blood  V.  French 

361 

Bowlby,  Goods  of 

139 

Bloodworth  v.  Stevens 

216 

Bowles  V.  Harvey 

231 

Bloomer  v.  Bloomer 

542 

Bowman  v.  Raineteaux 

245 

Bloomfield  v.  Ash 

140 

V.  Tallman 

256 

Blount  V.  Davis 

358 

V.  Wootton 

33.  137 

Blower  v.  Morret 

490 

Boxall  V.  Boxall 

353 

Bloxham  v.  Crane 

244 

Boyce  v.  Escoffie 

428 

Blue  V.  Marshall 

386,  387   1 

V.  Grundy 

19 

Blydenburgh  v.  Lowry 

173 

Boyd,  Re 

539 

Bob,  Succession  of 

137 

Boyd,  Succession  of 

155 

Bobo  V.  Vaiden 

148 

Boyd  V.  Boyd 

328,  498 

Bodger  V.  Arch 

195 

V.  Hawkins, 

545 

Bodle  V.  Hulse 

403 

V.  Lowry 

434 

Bodley  v.  McKinney           137 

324 

,  400 

V.  Oglesby 

387 

Bogan  V.  Camp 

341 

Boyd's  Appeal 

99 

V.  Walter 

536 

Boylan  v.  Meeker 

82 

Bogait  V.  Van  Velsor 

323 

329 

Boyle,  Goods  of 

46 

V.  Hertell 

400 

Boylston  v.  Carver 

214,  215 

Bogs  V.  Bard 

292 

Brackenbury,  Goods  of 

"5.  139 

Bolingbroke  v.  Kerr 

292 

,  410 

Brackenridge  v.  Holland 

0    ^58 

Bollard  v.  Spencer 

291 

Brackett  v.  Griswold 

283,  373 

Bomgaux  v.  Bevan 

42S 

V.  Tillotson                  422 

509.  542 

Bonafous  v.  Walker 

291 

Bradbury  v.  Morgan 

366,  367 

Bond,  Goods  of 

"5 

Braddock,  Goods  of 

63 

Bonds  V.  Allen 

456 

Bradford  v.  Felder 

120 

Boody  V.  Emerson 

160 

Bradley  v.  Bradley 

129 

Boofter  v.  Rogers 

63 

V.  Brigham 

379 

Bookman  v.  Smith 

474 

V.  Commonwealth       141 

160,  192 

Boone  v.  Dyke 

488 

V.  Heath 

255 

Boor  V.  Lowry 

283 

,370 

V.  Norris 

390 

Booraem  v.  Wells 

358 

V.  Dimonds 

516 

Booth  V.  Booth 

382 

,  402 

Bradley's  Goods 

36 

V.  Radford 

424 

Brady  v.  Shiel 

437 

V.  Patrick 

234 

Brake,  Goods  of 

38 

Borden  v.  Jenks 

490 

Bramhall  v.  Ferris 

217 

Borneman  v.  Sidlinger 

219 

Branch  v.  Branch 

289,  291 

Borer  v.  Chapman 

446a 

Branch  Bank  v.  Hawkins 

418 

Bosie,  Estate  of 

315 

V.  Rhew 

420 

Bosler  v.  Exchange.  Bank 

428 

V.  Wade 

331 

TABLE    OF    CASES, 


XXXV 


Section 

Seclion 

Brandenburg  v.  Thorndike 

465 

Brown  v.  Gellatljr 

324.  479 

Brandon  v.  Brown 

527 

V.  Gibson 

•94 

V.  Judah 

308 

V.  Hay 

102 

Brant  v.  Willson 

82 

V.  Hobson 

407 

Bras(ield  z'.  Cardwell 

409 

V.  Kelsey 

509 

Brashear  v.  Williams 

506 

V.  Leavitt 

189,  194 

Brassey  v.  Chalmers 

405 

V.  Litton 

323 

Brassington  v.  Ault 

403 

V.  McCall 

545 

Brattle  v.  Converse 

128 

V.  Murdock 

148 

Brazeale  v.  Brazeale 

308,  526 

V.  Porter 

419 

Brazer  v.  Clark                    145, 

328,  406 

V.  Public  Administrator 

428 

V.  Dean 

451 

V.  Ryder 

135 

Breen  v.  Pangborn 

160 

V.  Sullivan 

193 

Brenchley  v.  Lynn 

126 

V.  Sumner 

434 

V.  Still 

60 

V.  Temperly 

482 

Brett  V.  Brett 

66,  76 

V.  W^alker 

190 

Brewster  v.  Brewster 

389.  543 

V.  Weatherby 

>47 

V.  Kendrick 

419 

Brown's  Accounting 

402 

Brick  V.  Brick 

79 

Brown's  Estate 

104 

Brick's  Estate                        54 

526,  528 

Browne  v.  Cogswell 

494 

Briggs,  Goods  of 

43 

V.  Preston 

387 

Briggs  V.  Rochester 

23 

Browning,  Goods  of 

99 

V.  Wilson 

389 

Browning  v.  Paris 

389 

Bligham  7j.  Bush 

456 

V.  Reane 

98 

V.  Maxley 

361 

Brownlee  v.  Lockwood 

413 

Bright  V.  Adams 

63 

Brownson,  Re 

439 

Briscoe  v.  Tarkington 

107 

Brubaker's  Appeal 

no,  404 

V.  Wickliffe 

127 

Bruce  v.  Bruce 

16 

Bristow  V.  Bristow 

480 

V.  Griscom 

500 

British  Museum  v.  White 

75 

Brunk  v.  Means 

288 

Broach  v.  Sing 

89 

Brush  V.  Young 

407 

Brockett  v.  Bush 

387 

Bryan  v.  Mulligan 

355 

Brodie  v.  Barry 

19,  169 

V.  Rooks 

130 

Brokaw  v.  Brokaw 

457 

V.  Stewart 

402 

V.  Hudson 

470 

V.  Thompson 

404 

Bromage  v.  Lloyd 

362 

V.  White 

78 

Bromley  v.  Miller 

57 

Bryant  v.  Russell  ■ 

308 

Brooks  V.  Brooks 

230 

Bryce,  In  re 

74 

V.  Floyd 

289,  293 

Buchan  v.  Rintoul 

525 

V.  Mastin 

410 

Buchoz  V.  Pray 

434 

V.  Oliver 

518 

Buck  V.  Johnson 

^IZ 

V.  Smyser 

409 

Buckels  V.  Cunningham 

361 

V.  Whitmore 

148 

Buckley  v.  Barber 

200 

Brooksbank  v.  Smith 

391 

V.  McGuire 

140 

Broome  v.  Monck 

377.  427 

Budd  V.  Hiler 

226 

Brophy  v.  Bellamy 

475 

V.  Silver 

no 

Broughton  v.  Bradley 

153 

Buffaloe  v.  Baugh 

488 

Brown,  Ex  parte 

140,  407 

Buffum  V.  Sparhawk 

451 

Brown,  Goods  of 

39 

Buie  V.  Pollock 

491,  520 

Brown  v.  Anderson 

70 

Bultinch  v.  Benner 

428 

V.  Armistead 

407 

Bulkley  v.  Redmond              9 

1.  96,  153 

V.  Benight 

186 

Bull  V.  Sibbs 

376 

V.  Brown      146,  160,  174, 

490,  526 

Bullock  V.  Rogers 

200 

V.  Campbell 

324 

V.  Wheatley 

328 

V.  Clark 

82 

Bulmer's  Case 

380 

V.  Dean 

284 

Bundy  v.  McKnight 

75 

V.  Durbin 

184 

Burbank  v.  Payne 

362 

V.  Evans 

251.  257 

V.  Whitney 

464 

V.  F"arndell 

493 

Burch,  Cioods  of 

109 

V.  Fin  ley 

297 

Burch,  In  re 

"3 

XXXVl 


TABLE    OF    CASES. 


Burchmore,  Goods  of 
Burd  V.  McGregor 
Burdett,  Goods  of 
Burdick  v.  Garrick 
Burke  v.  Bishop 

V.  Coolidge 
Burkhead  r'.  Colson 
Burks  7'.  Bennett 
Burls  V.  Burls 
Burnet  7\  Holden 

V.  Mann 
Burnett  v.  Brian 

V.  Meadows 

V.  Nesmith 
Burnham  v_.  Lasselle 
Burnley  v.  Duke 
Burns  v.  Van  Loam 
Burridge  v.  Bradyl 
Burroughs  v.  McLain 
Burrows  v.  Walls 
Burrus  v.  Roulhac 
Burtch  V.  Elliot 
Burton  v.  Hintrager 

V.  Tunnell 

V.  Waples 
Burwell  v.  Mandeville 
Butler,  Estate  of 
Butler  V.  Butler 

V.  Lawson 
Butler's  Inventory 
Butler's  Succesion 
Butson,  Ne 
Buxton  V.  Buxton 
Byde  v.  Byde 
Byerly  v.  Donlin 
Byrd,  Goods  of 
Byrd  v.  Gibson 
Byrn  v.  Flemming 

V.  Godfrey 


Section 
132 

115.  131 
391 
204 

431 

488 

'3 

84 

426 

501 

391 

23 

142,  160 

285 

168,  408 

92,  96,  153,  160 

490 

417 

393 

295,  410,  411 

220 

214 

247 

118 

325 

175 

341.  346 

13 

234 

170 

24,  202,  2 1 1 

328 

469 

128 

77 
III 
161 
204 


Cabanne  v.  Skinker 

177 

Cables  v.  Prescott 

211 

Cadbury  v.  Duval 

347 

Cady  V.  Bard 

173 

Cagar  v.  Erisby 

361 

Caig,  Ex  parte 

"5 

Cain  V.  Haas 

"5 

Calder  v.  Pyfer 

410 

Caldwell  v.  Caldwell 

515 

V.  Lockridge 

528 

V.  McVicar 

310 

Calhoun  v.  Calhoun 

457 

Calhoun's  Estate 

317.321 

Calkins  v.  Boulton 

329 

V.  Calkins 

324 

Call  V.  Ewing 

402 

Callaghan  v.  Callaghan 

368 

Callaghan  v.  Hill 
Callahan  v.  Griswold 

V.  Smith 
Calvert  v.  Marlow 
Camden  v.  Fletcher 
Cameron  v.  Cameron 
Camp  V.  Crocker 
Campanari  v.  Woodburn 
Campbell,  Goods  of 
Campbell  v.  Booth 

V.  Brown 

V.  Bruen 

V.  Campbell 

V.  Sheldon  15 

V.  Shoatvvell 

V.  Wallace 
Campfield  v.  Ely 
Canada's  Appeal 
Candler  v.  Tillett 
Canning,  Goods  of 
Cannon  v.  Apperson 

7J.  Jenkins 
Canover  v.  Canover 
Capehart  v.  Logan 
Carey  v.  Berkshire  R. 
Carlisle  v.  Burley  276, 

Carlon,  Succession  of 
Carmichael  v.  Carmichael 

V.  Ray 
Carnes  v.  Crandall 
Carnochan  v.  Abrahams 
Carow  V.  Mowatt 
Carpenter  v.  Cameron 

V.  Denoon 

V.  Going 

V.  Gray 

V.  Jones 
Carr  v.  Estabrooke 

V.  Lowe 

V.  Roberts 
Carrol  v.  Bosley 
Carroll  v.  Carroll  55 

V.  Connet  43, 

v.  Stewart 
CarroUton  v.  Rhomberg 
Carron  Iron  Co.  v.  Maclaren 
Carruthers  v.  Corbin  428, 

Carson  v.  Carson 
Carte  v.  Carte 
Carter  v.  Anderson 

V.  Cutting 

V.  Engles 

V.  Estes 

V.  Greenwood 

V.  Hammett 

V.  Hinkle 

V.  Manufacturers'  Bank 

V.  Robbins  186 

V.  Trueman  408 

Carthey  v.  Webb  1 1 1 


Section 

330 
116 
160 
331 
>93 
236,  544 
464 

367 
134 
187 

15 

533 

439 

,57.  174 

389 

15 

398 

79 

402 

117 

422 

358 

236 

434 
283 

290,  291 
118 
187 

164,  165 
428 
196 

107,  428 

36 

57.78 
190 

154 

112,  IIS 

469 

181 

277,  300 

247 
,  88,  160 
236,  408 

402 

370 
178 

541 
485 
42 
156 
402 
420 
290 
120 

376 
456 

349.  352 


J5 
441 


TABLE    OF    CASES. 


XXXVU 


Section 

Cartright's  Case 

132 

Case  V.  Abell 

402 

Case's  Appeal 

403 

Casement  v.  Fulton 

77 

Casey  v.  Gardiner 

50,  112 

Caskie  v.  Harrison 

210,325 

Cason  V.  Casoi. 

329 

Casoni  v.  Jerome 

32,  106 

Caspenson  v.  Dunn 

485 

Cassedy  v.  Jackson 

32,  106 

Castle  V.  Warland 

322 

Caswall,  Ex  parte 

222 

Catchside  v.  Ovington 

236 

Catherwood  v.  Chabaud    293, 

409,  411 

Catlett  V.  Catlett 

74 

Catlin  V.  Wheeler 

13 

V.  Underbill 

289,  292 

Caton  V.  Coles 

374 

Cavanaugh  v.  Thompson 

154 

Cave  V.  Roberts 

497 

Cavendish  v.  Fleming 

526 

Cayuga  Co.  Bank  v.  Bennett 

401 

Central  Bank  v.  Little 

428 

Chadbourn  v.  C'hadbourn 

386,  387 

Chalk  V.  McAlily 

284 

Challen  v.  Shippam 

322 

Chamberlain  v.  Williamson 

280 

Chamberlin  v.  Wilson 

95 

Chamber's  Appeal 

308 

Chambers  v.  Bicknell 

113 

V.  Minchin 

402 

V.  Shaw 

460 

V.  Smith 

390 

Champion  v.  Brown 

218 

Chandler  v.  Batchelder 

477 

V.  Davidson 

193 

V.  Schoonover 

352,  356 

Chapin  v.  Hastings 

128 

Chaplin  v.  Burett 

385 

Chapman  v.  Esgar 

221 

V.  Fish 

173 

V.  Holmes 

285 

V.  Robertson 

19 

V.  Speller 

361 

Charles  v.  Jacob 

208 

Charlton's  Appeal 

526 

Charlton's  Estate 

308 

Charter  v.  Charter 

14 

Chase  v.  Fitch 

370 

V.  Kittredge 

77 

V.  Lockerman 

214 

V.  Redding 

219 

Cheatham  v.  Burfoot 

408 

V.  Hatcher 

75.  81 

Cheely  v.  Wells 

288 

Cheetham  v.  Ward 

208 

Cheever  v.  Judge 

151 

Chelsea  Water  Works  v.  Cowf 

)er      476 

Cheney  v.  Cheney 

455 

V,  Gleason 

284,  29s 

Chester  7'.  Urwick 
Chevallier  v.  Wilson 
Chew  V.  Chew 
Chew's  Appeal 
Chew's  Estate 
Chicago  R.  v.  Gould 

V.  O'Conner 
Child  V.  Gratiot 

7'.  Thorley 
Childs  .'.  Monins 

V.  Updike 
Childress  v.  Bennett 
Chisholm  v.  Lee 
Choate  v.  Arrington 
Chouteau  v.  Suydam 
Christian,  Goods  of 
Christian  v.  Morris 
Christopher  v.  Cox 
Christy  v.  McBride 

V.  Vest 
Churchill  v.  Hobson 

V.  Prescott 
Cincinnati  R.  v.  Heaston 
Citizens'  Bank  v.  Sharp 
Clack  V.  Holland 
Clare  v.  Hedges 
Clapp  V.  FuUerton 

V.  Ingraham 

V.  Meserole 

V.  Stoughton 

V.  Walters 
Clark,  Estate  of 
Clark,  Goods  of 
Clark  V.  Blackington  24,  175, 

V.  Burnside 

V.  Carroll 

V.  Clark 

V.  Clay 

V.  Clement 

V.  Cress 

V.  Davis 

V.  Eubank 

V.  Hardman 

V.  Knox 

V.  McClellan 

V.  Niles 

V.  Pishon 

V.  Piatt 

V.  Sevvell 

V.  Swift 

V,  Tainter 

V.  Wright 
Clarke,  Goods  of 
Clarke  v.  Alexander 

V.  Blount 

V.  Boorman 

V.  Chapin 

V.  Clarke 

V.  Clay 

V.  Hilton 


322 
III 


Section 
470 
541 

»S7 
405 
401 
109 
283 
109 
402 
258 

387 
163,  167 

324 
146 

387.  395 

77 

258 

32 
321 

25 
335 
174 
418 
176 
308 

133 

81 

222 

528 
201 

385 
538 
"5 
358 
227 

373 

98,  402 

522 

163,  167 

526 

430.  434 
522 

391 

538 

279 

137 
160,  195 

545 
481 
285 

49 
84 

74 

396 

402,  542 

474 
I  144 
32 
120 

494 


194. 


179, 


141, 


XXXVUl 


TABLE    OF    CASES. 


Clarke  v.  Jenkins 

V.  Ransom 

V.  Tufts 

V.  Wells 

V.  West 
Clarkington,  Goods  of 
Clason  a.  Lawrence 
Claudel  v.  Palao 
Clauser's  Estate 
Claussen  v.  Lufreuz 
Clawson  v.  McCune 
Clay,  Jie 
Clay  V.  Gurley 

V.  Willis 
Clayton  v.  Akin 

V.  Lord  Nugent 

V.  Soniers 

V.  Wardwell 
Cleaves  v.  Dockray 
Clement  v.  Hawkins 
Clement's  Appeal 
Cleveland  v.  Harrison 

V.  Quilty 
Cleverley  v.  Gladdish 
Clifton  V.  Haig 
Cline's  Appeal 
Clingman  v.  Hopkie 
Clopton  V.  Gholson 
Clough  V.  Bond  321,  328, 

V.  Dixon 
Clowes  V.  Hilliard 
Coates  V.  Coates 

V.  Mackey 

V.  Muse 
Cobb,  Estate  of 
Cobb  V.  Beardsley 

V.  Brown 

V.  Muzzey 

V.  Newcomb  100, 1 1 1, 
Cobbett  V.  Glutton 
Cobel  V.  Cobel 
Coburn  v.  Harris 

V.  Looniis 
Cochran  v.  Thompson 
Cochrane  v.  Robinson 
Cock  V.  Carson 

V.  Cooke 
Cocke  V.  Trotter 
Cockerill  v.  Kynaston 
Cockleton  v.  Davidson 
Cockroft  V.  Black 
Cocks  V.  Varney 
Codding  v.  Newman 
Coddington  v.  Bispham 
Coffee  V.  Ruffin 
Coffin  V.  Coffin 

V.  Cottle 

V.  Talman 
Cohea  v.  State 
Coit  V.  Comstock 


Section 

Section 

402 

Coke  V.  Colcroft 

367 

63,82 

Coker  v.  Crozier 

280 

249,  534 

Colbert  v.  Daniel 

» 73.  520 

128 

Cole  V.  Dial 

'53 

146 

V.  Elfe 

450 

116 

V.  Miles 

400 

288 

V.  Wooden 

134 

451.453 

Coleby  v.  Coleby 

422 

538,  545 

Colegrave  v.  Dias  Santos 

227 

186 

Coleman  v.  Raynor 

156 

420 

V.  Smith 

247 

5" 

Coles,  Goods  of 

63.  "5 

473 

Coles  V.  Trecothick 

74 

217,  221 

Colesbeck  v.  Peck 

426 

490 

Collamore  v.  Wilder 

251,417 

38 

Collen  V.  Wright 

372 

466,  542 

Collier  v.  Collier 

217 

506 

7'.  Jones 

189 

138,  143 

V.  Rivaz 

20 

260 

Collins  V.  Bankhead 

167 

526,  544 

V.  Crouch 

427 

362 

V.  HoUier 

522 

116,  151,  152 

V.  Spears 

107 

139 

V.  Tilton 

526,  542 

390 

CoUinson  v.  Lister 

352 

541 

Colston  V.  Morris 

478 

428 

Colt  7'.  Lesnier 

352 

256 

Coltart  V.  Allen 

152,  153 

Z2,(>,  338,  496 

Coltraine  v.  Spurgin 

428 

402 

Columbus  Ins.  Co.  v.  Humph 

ries      335 

519 

Colvert  V.  Peebles 

235 

470 

Colvin,  Jie 

140 

178 

Colvin  V.  Owens 

363 

428 

Colwell  V.  Alger 

138 

70 

Commercial  Bank  v.  Slater 

434 

129 

Commissioners,  Ex  parte 

116 

120 

Commissioners  v.  Greenwood 

428 

509 

Commonwealth  v.  Blanton 

504 

112, 113, 115 

V.  Bryan 

230 

272 

V.  Duffield 

222 

216 

V.  Higert 

146 

390*^ 

V.  Logan 

428 

526,  530 

V.  Mateer 

47 

120,  409,  410 

V.  McAlister 

329 

476 

V.  Taylor 

145 

262,  316,  410 

Comstock  V.  Crawford 

156 

63 

V.  Hadlyme 

73 

395 

Conant  v.  Kent 

502 

291 

Condit  V.  Winslow 

582 

173 

Conger  v.  Atwood 

457.  510 

439 

Conkey  v.  Dickinson 

247 

177 

Conklin  ?'.  Egerton 

407 

50 

Conly  V.  Conly 

282 

478 

Connell  v.  Chandler 

456 

431.  542 

Connelly's  Appeal 

230,  316 

75 

Conner  v.  Mcllvaine 

406,  532 

153,  386 

Converse  v.  Starr 

57 

375 

Conwill  V.  Conwill 

504 

142 

Cook  V.  Carr 

105 

465 

V.  Collingbridge 

330,  537 

TABLE    OF    CASES. 


XXXIX 


Cook  V.  Cook 
V.  Gregson 
V.  Holmes 
V.  Lanning 
V.  Sanders 
V.  Sexton 
Cooke  V.  Meeker 
Cool  V.  Higgings 
Coombs  V.  Coombs 
Coope  V.  Carter 
V.  Lowerre 
Cooper  V.  Brockett 


Section 
274 

221 
411 

481 
189 

453 
479 
422 

"5 

518 
104 

77.  81 

f.  Cooper  151,154,157,317^493,507 

V.  Day  468 

V.  Felter  428 

V.  Maddox  98 

V.  Thornton  485 

V.  White  205 

V.  Williams  315 

Coover's  Appeal  98 

Cope  V.  Cope  132 

Copeland  v.  McCue  310,  324 

V.  Stephens  376 

Copis  V.  Middleton  427 

Copp  V.  Hersey  534 

Coppin  V.  Coppin  490,  491 

Core  V.  Spenser  69 

Cordeux  v.  Trasler  1 10 

Cornell  v.  Gallaher  104 

Corner  v.  Shew  257,  396,  397,  398 

Comes  V.  Wilkin  418 

Cornish  v.  Wilson  146 

Cornpropst's  Appeal  104 

Cornthwaite  v.  Nat.  Bank  258 

Corr  V.  Porter  84 

Corsitt  V.  Biscoe  428,  433 

Cortelyou  v.  Lansing  305 

Corwine  z/.  Corwine  511 

Cote  V.  Dequindre  210 

Cotham  v.  Britt  509 

Cotter's  Estate  113 

Courtenay  v.  WiUiams  470,  508 

Cousins  V.  Jackson  527 

Cousins,  Re  363 

Cover  V.  Cover  412 

Coverdale  v.  Aldrich  204 

Covvdin  v.  Perry  527 

Cowell  V.  Watts  292 

Covvles  V.  Hayes  414 

Cowley  V.  Knapp  63 

Cowling  V.  Justices  142 

Cox,  Creditors  of  221 

Cox  V.  Cox  122 

V.  John  441 

V.  Joseph  427 

V.  McBurney  214 

V.  Morrow  496 

Craddock  v.  Stewart  361 

Crafton  v.  Beal  43 

Craig  V.  Leslie  217 


Section 

457 
>7 
481 
247 
481 

216 

422 
«93 

385 
411 

346 
264 

173 
291 
488 
361 
230 
128 
490 
500 

"3 
76 

403 
41 

170 

361 
16,  17,  167,  169 


Craig  V.  McGehee 
Craige  v.  Morris 
Craigie  v.  Lewin 
Crain  v.  Barnes 
Craker  v.  Dillon 
Cram  v.  Barnes 
Crandall  v.  Shaw 
Crane  v.  Guthrie 
Craps  V.  Armstrong 
Craskin  v.  Baker 
Cravath  v.  Plympton 
Cravens  7'.  Logan 
Crawford  v.  Blackburn 
V.  Elliott 
V.  Graves 
V.  Whittal 
Cray  v.  Willis 
Cray  ton  v.  Munger 
Creamer  v.  Waller 
Creath  v.  Brent 
Creed  v.  Creed 

V.  Lancaster  Bank 

Cresse,  Matter  of 

Cresswell  v.  Cresswell 

Creswick  v.  Woodhead 

Cringan,  Goods  of 

Crippen  v.  Dexter 

Crisman  v.  Beasley 

Crispin  v.  Doglioni 

Crist  V.  Crist 

Crocker  v.  Smith  509 

Croft  V.  Lyndsey  314 

V.  Williams  402 

Crofton  V.  Crofton  178 

V.  Ilsley  17 

Crolly  V.  Clark  19 

Cronan  v.  Cutting  385 

Crook  V.  Watt  498 

Crookenden  v.  Fuller  22 

Crosby  v.  Covington  tpQ 

V.  Crosby  247 

V.  Gilchrist  168 

V.  Leavitt  91 

V.  Mason  265 

Cross  V.  Brown  220,  297 

Crouch  V.  Davis  469 

Crowder  v.  Shackelford  544 

Crowninshield  v.  Crowninshield  73 

Crozier  v.  Goodwin  134,  141 

Crozier,  Re,  135 

Crum  V.  Bliss  16 

Crump  v.  Williams  195,  262 

Cubbidge  v.  Boatwright  409 

Cullen  V.  O'Hara  244 

Cummings  v  Allen  457 

V.  Bramhall  204 

V.  Cummings  526 

Cunningham  v.  Souza  1 37,  146 

Cureton  v.  Mills  181 

Curie  V.  Curie  428 


xl 


TABLE    OF    CASES. 


Curie  V.  Moore 
Curley  v.  Hand 
Curling  v.  Thornton 
Curre  v.  Bowyer 
Curser,  Ke 
Curtis  V.  Bailey 

V.  Brooks 

V.  Curtis 

V.  Williams 

V.  Vernon 
Curtiss  V.  Beardsley 
Cushing  V.  Aylwin 

v.  Cushing 
Cutbush  V.  Cutbush 
Cutchin  V.  Wilkinson 
Cutlar  V.  Quince 
Cutler  V,  Howard 
Cutliff  V.  Boyd 
Cutright  V.  Stanford 
Cutter  V.  Currier 

V.  Davenport 
Cutting  V.  Tower 


D. 


Section 

'73 
428 
171 

377 
32,  106 

531 
504 

85 

100,  115,  152 

187 

150 

17 
500 
326 
130 
129 
32,  154 
504 
380 
522 
164 
280 


Dabney's  Appeal  335 

DaboU  V.  Field  520 

Dagley  v.  Tolferry  483 

Dale  V.  Roosevelt  409 

Dairy mple  v.  Gamble  153 

Damouth  v.  Klock  192,  193 

Daniel  v.  Hill  63 

Dans  V.  Dabergott  112 

Danzey  v.  Smith  297,  316 

V.  Swinney  420 

Darden  v.  Reese  456 

Dardier  v.  Chapman  106 

Darke,  In  re  32 

Darke  v.  Martyn  322 

Darling  v.  Hammer  338 

Darston  v.  Lord  Oxford  437 

D'Arusment  v.  Jones  55,  91,  92 
Davenport  v.  Congregational  Society 

387,  388 


V.  Devenaux 

457 

V.  Irvine 

154 

V.  Sargent 

481 

David  V.  Frowd 

519 

Davidson  v.  Potts 

120 

Davies,  Goods  of 

99 

Davies  v.  Bush 

490 

V.  Nicholson 

491 

V.  Williams 

403 

Davis,  Goods  of 

77 

Davis,  Matter  of 

538 

Davis,  Ke, 

545 

Davis,  Succession  of 

137 

Davis  V.  Chanter 

"5 

V,  Covvden 

526,  528,  533 

Section 

Davis  V.  Davis  59,  247,  428,  451 

V.  Estey  15,  166,  174 

V.  French  208,  254,  397 

V.  Gaines  352 

V.  Garr  391 

V.  Harper  522 

V.  Inscoe  47,  50 

V.  Lane  251 

V.  Marcum  356 

V.  Newman  491 

V.  Rhame  288 

V.  Shuler  119 

V.  Smith  428 

V.  Stevens  118,  119 

V.  Swearinger  115,  118 

V.  Vausands  ^PP- 

V.  Wright  440 

Davis's  Appeal  532 

Davone  v.  Fanning  358 

Dawes,  Goods  of  134 

Dawes  v.  Boylston  194,  195 

Day  V.  Day  381 

Dean  v.  Allen  476 

V.  Biggers  135,  250 

V.  Dean  70 

V.  Portis  417 

Deane  v.  Caldwell  375,  376 

Dease  v.  Cooper           *  453 

De  Beauvoir,  Re  217 

Decker  v.  El  wood  526,  528 

Deeks  v.  Strutt  521 

Deering  v.  Adams  46 

De  Flechier,  Succession  of        135,  154 

De  Haven  v.  Williams  401,  402 

Deichman,  Goods  of  41 

Deichman's  Appeal  28,  428 

Delafield  v.  Parish  73 

De  Lane's  Case  153 

Delaney  v.  Noble  152 

Delorme  v.  Pease  118 

Deming  v.  Taylor  279 

Demond  v.  Boston  282 

Dennis  v.  Shaner  430 

V.  Weeks  81 

Dennison  v.  Talmage  150 

Denny  v.  Booker  385 

V.  Faulkner  175 

Denton,  Re  483 

De  Peyster  v.  Clendining  17 

Deraismes  v.  Deraismes  428 

Deranco  v.  Montgomery  158 

De  Rosaz,  Goods  of  38 

Despard  v.  Churchill  42 

De  Tastet  v.  Shaw  439 

Detwiller  v.  Hartman  465 

De  Valengin  v.  Duffy  395,  397 

Devane  v.  Royal  256 

Devaynes  v.  Noble  379 

Devecmon  v.  Devecmon  63 

De  Vigny,  In  re  169 


TABLE    0 

F    CASES. 

xli 

Section 

Section 

Devlin  v.  Commonwealth 

91,  i6o 

Douglas  V.  Cooper 

169 

Devling  v.  Little 

4CX3 

V.  Eraser 

258 

Dewey  v.  Dewey 

77,  8i 

V.  Satterlee 

402 

De  Witt  V.  Yates 

46S 

Douglass  V.  Harkrender 

76 

Dey  V.  Day 

490 

V.  New  York 

116, 

146 

V.  Codman 

539.  542 

Dowdale's  Case 

>75 

D'Eyncourt  v.  Gregory 

227 

Dowen  v.  Leeds 

84 

Dickenson  v.  Callahan 

367 

Dowling  V.  Feeley 

146 

Dickie  v.  Dickie 

543 

Downward  v.  Dickinson 

"5 

Dickinson's  Appeal 

504  a 

Downs  V.  Collins 

326 

Dickinson  v.  Dickinson 

76 

Dowrie  v.  Knowles 

540 

V.  Naul 

160 

Dowse  V.  Coxe 

395 

V.  Seaver 

29 

Doyle  V.  Blake       44,  46,  321, 

335. 

402 

Dickson,  Jie 

341 

Drake  v.  Coltraine 

427 

Dietrich's  Succession 

116 

V.  Drake 

545 

Dillabaugh's  Estate 

356 

V.  Green 

33. 

154 

Dilliard  i>.  Harris 

25 

Drayton,  In  re 

43 

Dillinger  v.  Kelley 

358,  509 

Drayton  v.  Grimke 

407 

Dillon  V,  Coppin 

368 

Drew's  Appeal 

104 

Di  Sora  v.  Phillips 

169 

Drew  V.  Gordon 

452- 

454 

Ditchtield,  Goods  of 

124 

Drinkwater  v.  Drinkwater    212 

.213 

,509 

Diversey  v.  Smith 

370 

Driver  v.  Riddle 

159. 

268 

Dix  V.  Burford 

402 

Drohan  v.  Drohan 

353 

V.  Morris 

509 

Drubaker's  Appeal 

153 

Dixon  V.  Buell 

420 

Drue  V.  Baylie 

410 

V.  Dixon 

484 

Drury  v.  Natick 

37 

464 

V.  Ramsay 

194 

V.  Smith 

219 

Doak,  Estate  of 

116 

Drybutter  v.  Bartholomew 

202 

Doane  v.  Walker 

457 

Dubois'  Case 

428 

Dobins  v.  McGovern 

145 

Dudley  v.  Warde 

227 

Dodson  V.  Hay 

217 

Duffield  V.  Morris 

81 

V.  Samuel 

376 

Duffy  V.  Buchanan 

522 

V.  Simpson 

359 

Dufour  V.  Dufour 

527 

Doe  V.  Clark 

220 

Dugan  V.  Hollins                316 

347 

.355 

V.  Cross 

63 

Duhme  v.  Young 

•54 

V.  David 

243 

Duncan,  Re, 

>35 

V.  Guy 

295 

Duncan  v.  Beard 

81 

V.  Hersey 

76 

V.  Dawson 

V.  McFarland 

173 

V.  Duncan 

468 

V.  Porter 

267,  280,  287 

V.  Eaton 

451 

V.  Sturges 

488 

V.  Gainey 

515 

V.  Vardill 

16 

V.  Jaudon 

350 

.351 

Dolbeer  v.  Casey 

418 

V.  Watson 

410 

Dole  V.  Irish 

120 

V.  Watts 

490 

Donald  v.  McWhorter 

421 

Duncommun's  Appeal 

532 

Donaldson,  Goods  of 

89 

Dunham  v.  Dunham 

488 

V.  Raborg 

128 

V.  Elford 

Donnell  v.  Cooke 

508 

V.  Millhouse 

221 

V.  Prendergast 

50 

Dunlap  V.  Mitchell 

358 

Doogan  V.  EUiott 

334 

Dunn,  Ex  parte 

454 

Doolittle  V.  Lewis 

15 

Dunn  V.  Sargent 

201 

Dorah  v.  Dorah 

454 

Dunne  v.  Deery 

258 

Doran  v.  Mullen 

72 

Dunning  v.  Ocean  Nat.  Bank 

214 

,408 

Dorchester  v.  Webb 

403 

Dupuy  V.  Wurtz 

I 

7,  20 

Door  V.  Wainvvright 

241,  485 

Durffee  v.  Abbott 

420 

Dorsett  v.  Frith 

190 

Durham,  Estate  of 

347 

Dorsey  v.  Dorsey 

164 

Duinford,  Succession  of 

440 

Dortch  V.  Dortch 

3'7.  322 

Du  Val  V.  Marshall 

173 

,  179 

Dost  Ali  Khan,  Goods  of 

169 

Duvall  V.  Snowdon 

138 

Dougherty  v.  Stephenson 

251 

Dwight  V.  Mudge 

375 

xlii 


TABLE    OF    CASES. 


Section 

Section 

Dwight  V.  Newell 

400 

Elwes  V.  Maw 

227 

V.  Simon 

154 

Elwood  V.  Diefendorf 

401 

Dye,  Goods  of 

32 

Ely  V.  IIi>rine 

358 

Dyke  v.  Walford 

117 

V.  Williams 
Emerson,  Appellant 

362 

545 

Emerson  v.  Bowers 

104, 

154 

E. 

V.  Thompson 
Emery  v.  Batchelder 

401 
490 

Eagle  V.  Fox 

292 

V.  Berry 

184, 

•95 

Eames  v.  Ilacon 

174 

176 

V.  Hildreth 

24 

Earle  v.  Eaile 

321, 

402 

England  v.  Prince  George's  Vestry 

459 

Eastland  v.  Lester 

200 

V.  Tredegar 

476 

East  Tenn.  Co.  v.  Gaskell 

258 

English  V.  Harvey 

538 

Eaton  V.  Benton 

469 

V.  McNair 

32, 

316 

V.  Cole 

386 

Enicks  v.  Powell 

148 

V.  Walsh 

208 

England  v.  Newell 

402 

Eberstein  v.  Camp 

488 

Enloe  V.  Sherrill 

65 

Echols  V.  Barrett 

120,  137, 

153 

Ennis  v.  Smith 

161 

Eddins  t^  Graddy 

428 

Eno  V.  Cornish 

442 

Edelen  v.  Edelen 

153,  541 

542 

Enohin  v.  WyHe    16,  19, 

164,  167, 

169 

Eden  v.  Smyth 

470 

Enyon,  Goods  of 

74 

Edgar  v.  Shields 

504 

Epping  V.  Robinson 

228 

Edmond  v.  Peake 

321 

Eppinger  v.  Canapa 

545 

Edmonds,  Goods  of 

66 

Erwin  v.  Branch  Bank 

418 

Edmonds  v.  Crenshaw 

400 

402 

Eshleman's  Appeal 

545 

Edmundson  v.  Roberts 

153 

Estep  V.  Morris 

76 

Edwards  v.  Freeman 

495,  498 

499 

Etchison  v.  Etchison 

77 

V.  Hall 

461 

Eubanks  v.  Dodds 

252 

281 

V.  Harben 

186 

Evans  v.  Arnold 

73 

V.  McGee 

455 

V.  Blackiston 

407 

V.  Smith 

63 

V.  Evans 

73 

347 

Egerton  v.  Egerton 

219 

542 

V.  Fisher 

491 

Egremont  v.  Thompson 

295 

V.  Gordon 

289,  292 

293 

Ehlen  v.  Ehlen 

99 

153 

V.  Halleck 

542 

Eidenmuller's  Estate 

305 

V.  Inglehart  226, 324, 479, 480 

,  506 

Eisenbise  v.  Eisenbise 

120,  269, 

276 

V.  Roberts 

226 

Ela  V.  Edwards 

78. 

179 

V.  Tatem 

173 

Elbert  v.  O'Neil 

457 

V.  Tyler 

33 

Elder  v.  Littles 

189 

Evans,  Re 

346 

Eldridge  v.  Eldridge 

467 

Evarts  v.  Nason 

545 

Elfe  V.  Cole 

451 

Evelyn,  Ex  parte 

134 

Ellicott  V.  Chamberlain 

48 

Evelyn  v.  Evelyn 

103 

Elliott  V.  Elliott 

488 

Everett  v.  Avery 

428 

V.  Gurr 

98 

Everit,  Matter  of 

2l8 

V.  Kemp 

244,  248, 

409 

Ewer  V.  Corbet 

343 

V.  Maytield 

145 

Ewin,  /«  re 

175 

V.  Merriman 

357 

Ewing  V.  Ewing 

24, 

169 

Elliott's  Succession 

423 

424 

V.  Moses 

520 

Ellis,  Ex  parte 

33 

Eynon,  Goods  of 

77 

Ellis  V.  Carlisle 

418 

Eyre  v.  Cox 

519 

V.  Davis 

352 

V.  Higbee 

205 

V.  Mc(iee 

187 

V.  Merriam 

254 

V.  Walker 

461 

F. 

V.  Witty 

141 

Ellmaker's  Estate 

132, 

135 

Fairbairn  v.  Fisher 

33 

Elme  V.  Da  Costa 

"5 

Fairbanks  v.  Hill 

98 

Elmendorf  v.  Lansing 

ZZ 

403 

Fairer  v.  Park 

462 

Elmer  v.  Kechele 

104 

Fairfax  v.  Fairfax 

137 

389 

Elrod  V.  Alexander 

281 

Fairman's  Appeal 

422 

TABLE    OF    CASES. 


xliii 


Section 


Section 


f  aler  v.  McRae 

223 

Fleece  v.  Jones 

527 

Fallon  V.  Childester 

160 

Flemitig  v.  Buchanan 

222 

Fambro  v.  Gault 

346 
461 

V.  Chunn 

216 

Farnum  v.  Bascom 

Flemings  v.  Jarrat 

186 

Farr  v.  Newman 

243.  352 

Fletcher  v.  Ashburner 

217 

Farrall  v.  Shea 

286,  373 

V.  Weir 

146, 

409 

Farrelly  v.  Ladd 

385 

Flintham's  Estate 

421 

Farrow  v.  Wilson 

278 

Flitner  v.  Hanley 

423 

Farwell  v.  Jacobs 

43.  407,  527 

Flood,  Matter  of 

439 

Faulkner  v.  Faulkner 

400,  401 

Flood  V.  Pilgrim 

5>o 

Fawkes  v.  Gray 

478 

Flora  V.  Mennice 

»35 

Fay  V.  Cheney 

214 

Floyd  V.  Herring 

153 

V.  Fay 

509 

Foley  V.  Bushway 

422 

V.  Haven               1 8, 

167,  179,  181 

Foltz  V.  Hart 

478 

V.  Holloran 

216 

V.  Prouse 

154. 

216 

V.  Muzzey            227, 

408,  409,  509 

Fontaine  v.  Tyler 

461 

Fellows  V.  Lewis 

178 

Fonte  V.  Horton 

402 

V.  Little 

500 

Foote,  Appellant 

461 

Feltz  V.  Clark 

141 

Foote  V.  Colvin 

226 

Fennimore  v.  Fennimore 

402 

Forbes  v.  Peacock 

405 

Feray's  Succession 

141 

V.  Ross 

335 

Ferebee  v.  Baxter 

409 

Ford  V.  Exempt  Fire  Co. 

509 

Ferguson  v.  Barnes 

189 

V.  Ford 

65 

V.  Collins 

106 

V.  Russell 

256,  318, 

349 

V.  Glaze 

241 

•    V.  Teagle 

84 

V.  Morris 

173 

Foreign  Missions,  ht  re 

128 

Ferlay  v.  Chirney 

280 

Forney  v.  Benedict 

389 

Fernie,  In  re 

32 

Forniquet  v.  Forstall 

409 

410 

Ferrie  v.  Public  Administrator         108, 

Forsyth  v.  Burr 

230 

116,  118 

V.  Ganson 

401 

Ferrin  v.  Myrick 

398,  422 

Fosbrook  v.  Balguy 

330 

Ferris  v.  Ferris 

155 

Foster's  Appeal 

84,  214 

217 

Ferry  v.  Laible 

256 

Foster  v.  Banbury 

76 

Fessen  den's  Appeal 

515 

V.  Bates 

195 

Fetrow  v.  Fetrow 

226 

V.  Brown 

160 

Field  V.  Gibson 

173.  184 

V.  Commonwealth 

94 

120 

V.  Mostin 

469 

V.  Fifield 

200,  451 

507 

V.  Schieffelin 

350.  352,  359 

V.  Foster 

64 

449 

V.  Van  Cott 

142 

V.  Starkey 

389 

Fielder  v.  Hanger 

130.  507 

Foteaux  v.  Lepage 

216 

509 

Fields  V.  Wheatley 

428 

Fowle  V.  Thompson 

334 

Fillyan  v.  Laverty 

419 

Fowler  v.  Colt 

481 

Finch  V.  Ragland 

233.  439 

V.  Kell 

98 

V.  Rogers 

488 

Stagner 

82 

Finlay  v.  Chirney 

370 

V.  True 

390 

Findley  v.  Gidney 

420 

Fox,  Matter  of 

459 

Finn  v.  Hempstead 

128,  409 

Fox  V.  Carr 

24.  25 

Fisher,  Re 

82,  122,  142 

V.  Van  Norman 

184 

Fisher  v.  Bassett 

160 

Franklin  v.  Depriest 

142 

V.  Dixon 

227 

V.  Low 

370 

V.  Mossman 

390 

Frary  v.  Booth 

443 

Fisk  V.  Cushman 

457 

Eraser,  Goods  of 

36 

V.  Norvell 

134 

Frazer,  Ke 

541 

Fite  V.  Beasley 

465 

Frazer  v.  Fulcher 

92 

Fitzgerald's  Estate 

543 

V.  Page 

494 

Fitzhugh  V.  Fitzhugh 

257 

Frazier  v.  Frazier 

140,  142 

146 

Fitzsimmons  v.  Cassell 

405 

Freakley  v.  Fox 

208 

Flanders  v.  Clarke 

405 

Frear  v.  Williams 

75 

V.  Flanders 

357.  358 

Freeman  v.  Fairlee 

5'8 

V.  Lane 

528 

Freeman  v.  Kellogg 

11^  137 

'54 

xliv 


TABLE    OF    CASES. 


Section 

Section 

Freeman  v.  Rhodes 

522 

Gates  V.  Whetstone 

308,  316 

Freeniantle  v.  Taylor 

474 

Gatfield  v.  Hanson 

195 

Freke  v.  Lord  Carbery 

169 

Gatti,  Goods  of 

169 

French  v.  Currier 

346 

Gaunt  V.  Tucker 

219 

V.  French 

63 

Gay  V.  Lemle 

190.  435 

Fretvvcll  -'.  Lemore 

165 

174 

V.  Minot 

160 

V.  Stacy 

490 

Gayle,  Succession  of 

251 

Frew  V.  Clarke 

63 

Gaylord's  Appeal 

77 

Frey  v.  Frey 

324 

Geddis  v.  Irvine 

403 

Frick's  Appeal 

109 

"5 

Gee  V.  Young 

226 

Frinks  v.  Pond 

76 

Geiger  v.  Kaigler 

387 

Frisby  v.  Withers 

413 

Genet  v.  Tallmadge 

483 

Frith  V.  Lawrence 

310 

George  v.  Baker 

400 

Fromberger  v.  Greiner 

213 

V.  George 

60,  67,  85 

Fross's  Appeal 

536 

V.  Goldsby 

488 

Frost  V.  Denman 

545 

V.  Watson 

23 

Fry,  Goods  of 

36 

Georgetown  College  v. 

Browne  32,  113 

Fry's  Will 

78 

Gerrish  v.  Nason 

73 

Frye  v.  Crockett                 I40 

142 

143 

Gerry,  Ke 

479 

V.  Kimball 

154 

Ghost  V.  Waller 

321 

Fryer  v.  Ward 

461 

Gibbens  v.  Curtis 

sn 

Fuentes  v.  Games 

59 

V.  Peeler 

297 

Fuguet's  Will 

74 

Gibblett  v.  Read 

200 

Fuhrer  v.  State 

503 

504 

Gibbons  v.  Riley 

42 

Fuller,  Ex  parte 

160 

Gibbs,  Goods  of 

66 

Fuller  V.  Redman 

426 

Gibson  v.  Bolt 

479 

Fulton  V.  Andrew 

85 

V.  Farley 

216 

Fuqua,  Succession  of 

76 

Giddings  v.  Butler 

400 

Fyson  v.  Chambers 

201 

V.  Crosby 

451 

V.  Westrope 

69 

Giessen  v.  Bridgford 
Gilbert  v.  Hales 

123 
437 

G. 

V.  Hard  wick 
V.  Little 

408 
418 

Gadsden  v.  Lord 

439 

V.  Welsh 

335 

Gage  V.  Johnston 

291 

404 

Gilbert's  Appeal 

331.  358 

Gaines  v.  De  la  Croix 

341 

Gilchrist  v.  Cannon 

174 

V.  Del  Campo 

428 

Giles  V.  Dyson 

236 

Gainey  v.  Sexton 

428 

Gilkey  v.  Hamilton 

''95 

Gale  V.  Luttrell 

229, 

232 

Gill,  Goods  of 

lOI 

V.  Nickerson 

13 

Gillespie  v.  Alexander 

491 

Gallant  v.  Bouteflower 

292 

Gillett  V.  Needham 

112,  118 

Gallego  V.  Attorney  General 

491 

Gilman  v.  Gilman 

21,  164 

Gaily,  Goods  of 

169 

V.  Healy 

400 

Gamble  v.  Gamble 

246 

V.  McArdle 

219,  220 

Gann  v.  Gregory 

86 

V.  Wilber 

325 

Gardner  v.  Gantt 

137 

488 

Gilmore  v.  Hubbard 

387 

V.  Gardner                   347, 

525. 

540 

Girling  v.  Lee 

221 

Garesche  v.  Priest 

324, 

IZl 

Girod  V.  Pargoud 

402 

Garfield  v.  Bemis 

419 

Gist  V.  Cockey 

443 

V.  Williams 

285 

Githens  v.  Goodwin 

530 

Garland,  Ex  parte 

325. 

326 

Gladson  v.  Whitney 

509 

Garner  v.  Graves 

204 

Glancy  v.  Glancy 

74 

V.  Lyles 

186 

Glass  V.  Howell 

283 

Garnett  v.  Macon 

343 

406 

Gleaton  v.  Lewis 

186 

Garrett  v.  Noble 

253 

Gleespin,  Matter  of 

79 

V.  Stilwell 

1:20 

Glenn  v.  Glenn 

310 

Gartshore  v.  Chalie 

467,  478 

Glover  v.  Glover 

308 

Garvin  v.  Stewart 

520 

V.  Halley 

542 

Garwood  v.  Garwood 

525 

Godbee  v.  Sapp 

263 

Gaskins  v.  Hammett 

409 

Godbold  V.  Roberts 

409 

TABLE    OF    CASES. 


xlv 


Goddard's  Estate 
Goddard  2>.  Goddard 
Godfrey  v.  Getchell 
Godson  z'.  (iood 
Goffv.  Cook 
Gold's  Case 
Goldsworthy  v.  Crossly 
Goodale  v.  Mooney 
Goodall  V.  Marshall 

V.  Tucker 
Goode  V.  Buford 
Goodfellow  z'.  Burchett 
Goodhue  v.  Clark 
Goodlett  V.  Anderson 
Goodman,  A'e 
Goodman  v.  Walker 
Goodman's  Trusts,  /«  re 
Goodrich  v.  J'reat 
Goodwin  v.  American  Bank 

V.  Goodwin 

V.  Jones 

V.  Milton 
Goodyear  v.  Bloodgood 
Gordon  v.  Finlay 

V.  Small 
Gosman,  /?e 
Gottsberger  v.  Smith 

V.  Taylor 
Gould  V.  Hayes 

V.  Mathers 

v.  Safford 
Gouldsmith  z'.  Coleman 
Governor  v.  Gowan 

V.  Williams 
Graflf  V.  Castleman 
Graham  v.  Davidson 
Grande  v.  Herrera 
Grant,  Goods  of 
Grant  v.  Bodwell 

V.  Grant 

V.  Hughes 

V.  Leslie 

V.  Reese 

V.  Spawn 
Granville  z>.  McNeile 
Grattan  v.  Appleton 

V.  Grattan 
Gratz  V.  Bayard 
Graves  v.  Flowers 

V.  Graves 

V.  Page 

V.  Spoon 
Gray  v.  Armistead 

V.  Gray 

V.  Harris 

V.  Hawkins 

V.  Lynch 

V.  Swain 
.Sraysbrook  v.  Fox 
Grayson  v.  Atkinson 


Section 
Ii6 
99 
452 
378 
189 

233.  236 

60 

464 

>5.  174 

179 
146 

315 

265 

24.25 

108 

289,  292 

16 

98 

349,  352 
358,  526 

239.  241 
195,  218 
409 
404 
476 
117 

539 
146 
520 
405 
89 

251 
148 
146 
352 
233 
118 

43.  128 
200,  504  a 

474 

450,  526 

37.40 

236,  270,  542 

36 

405 

17 

500 

326 

409 

456 

186,  193 

508 

362 

67,  154 
408 
251 
308 
209 
160 
74 


Greaves,  /^e 
Greeley's  Will,  fn  re 
Green,  Re 
Green  v.  Collins 

V.  Creighton 

V.  Cutright 

V.  Fagan 

z'.  Givan 

z'.  Green 

V.  Hanberry 

V.  Howell 

V.  Listowell 

V.  Kugely 
Greene  v.  Dyer 

V.  Grimshaw 
Greenleaf  v.  Allen 
Greenough  v.  Greenough 
Gregg  V.  Boude 

V.  Currier 

V.  Gregg 

V.  Wilson 
Gregory  v.  Ellis 

V.  Harrison 

V.  Hooker 
Gresham  v.  Pyron 
Greville  v.  Browne 
Grew  V.  Breed 
Grierson,  In  re 
Griffin  v.  Coleman 

V.  Simpson 
Griffith  V.  Charlotte 

V.  Frazier 
Grigg's  Estate 
Grigsby  v.  Wilkinson 
Grim  v.  Carr 
Grimes  v.  Talbert 
Grist  V.  Hodges 
Griswold  v.  Bigelow 

V.  Chandler        273, 

Grote  V.  Pace 
Groton  v.  McDonald 

V.  Ruggles 
Groves  v.  Williams 
Grubbs  v.  McDonald 
Grundy,  Goods  of 
Grymes  v.  Pendleton 
Guldin's  Estate 
Gulick  V.  Gulick 
Gulledge  v.  Berry 
Gundry  v.  Henry 
Gunn  V.  Hodge 
Gunning  v.  Lockman 
Gunstan,  Re 
Gunter  v.  Jones 
Gusman's  Succession 
Guthrie  zk  Wheeler 
Guy  V.  Sharp 
Gwin  V.  Hicks 
Gwynn  v.  Dorsey 


Section 

417 

72 

346.  347 

205 

387 
226 

544 
491 
22,  210,  223 
321 
500 
376 
167 
419 
542 
375,  376 
74 
438 
509 
533 
154 

35 
408 

422 
150 

380 

112 

97 
522 
280 
133 

«3 

280 

91 

285 

390 

316,  355.  358, 

510,  538,  542 

16 

74,  79 
241,  485 

390 
74.  79 
99.  129 
378 
106 
177 
404 

541 
289,  292 

523 

75 
419 

32 

3i7« 

468 

226 

356,  542 


317 


xlvi 


TABLE    OF   CASES. 


H. 

Haberman's  Appeal 
Hal)eshon  t.  \'ardon 
Hadlow  z'.  Lundy 
Haell  <'.  Blanchard 
Hagthurp  -'.  Ilook 

V.  Neale 
Haight  V.  Brisbin 

V.  Hoyt 
Haigood  v.  Wells 
Hairland  r.  Trust  Co. 
Hale  v.  Hale 

I'.  Marquette 
Hall,  C'loods  of 
Hall,  Succession  of 
Hall  z/.  Andrews 

V.  Carter 

V.  Chapman 

V.  Cushing 

V.  Deatiy 

V.  Hall  208, 

V.  Hallett 

V.  Irwin 

V.  Merrill 

V.  Wilson 
Hall's  Appeal 
Halleck,  Estate  of 
Halleck  v.  Mixer 

V.  Moss 
Hallet  V.  Bassett 
Halliday  v.  Du  Bose 
Hallowell's  Estate 
Halsey  v.  Reed 
Ham  V.  Henderson 

V.  Kornegay 
Hamaker's  Estate 
Hamberlin  z\  Terry 
Hambly  v.  Trott 
Hamer  v.  Bethea 
Hamilton,  Matter  of 
Hamilton  v.  Hamilton 

V.  Wilson 
Hamilton's  Estate 
Ilammett  v.  Starkweather 
Hammond,  Goods  of 
Hammond  v.  Hammond 

V.  Hoffman 

V.  Putnam 
Hampson  v.  Physick 
Hancock  v.  Podmore 
Handy  v.  Collins 
Hankins  v.  Kimball 
Hanover,  Jxe 
Hapgood  V.  Houghton 

V.  Jennison 
Happiss  V.  Eskridge 
Harcourt  v.  Morgan 
Hardaway  v.  Parham 
Harding  v.  Evans 
Hardinge,  Goods  of 


Section 


Section 

Hardy  v.  Thomas 

190 

537 

Hare,  Goods  of 

66 

463 

Hare  v.  Nasmyth 

>7 

13 

Harker  v.  Clark 

279 

145 

T.  Whitaker 

374 

331 

Harkins  v.  Hughes 

491 

410 

Harlan,  Estate  of 

93 

154,  539 

Harley  v.  Bagshaw 

86,87 

282,  373 

Harlow  v.  Harlow 

528 

157 

Harness  v.  Green 

428 

434 

Harney  v.  Dutcher 

408,  410 

448,451 

Harper  v.  Archer 

214,  3^3 

515 

V.  Butler 

164 

408 

V.  Smith 

407 

78 

V.  Stroud 

433 

507 

Harrell  v.  Witherspoon 

257 

401 

Harrington  v.  Brown 

153.  355.  358 

346 

V.  Kateltas 

3903 

137 

V.  Price 

225 

391 

V.  Stees 

89 

242,  525 

Harris  v.  Dillard 

154 

358,  537 

V.  Ely 

522 

407 

V.  Ferguson 

200 

434 

V.  Foster 

543 

434 

V.  Harris 

75 

334 

V.  Harrison 

247 

429.  525 

v.  Meyer 

223 

280 

V.  Milburn 

135 

346 

V.  Parker 

344 

21 

V.  Pue 

74 

113 

V.  Saunders 

426 

208 

V.  Seals 

154 

430 

V.  Stilwell 

526 

291 

Harrison  v.  All  Persons 

"5 

409 

z'.  Clark 

152,  153 

531 

V.  Every 

60 

153 

v.  Harrison 

218 

370 

V.  Henderson 

47.  439 

217 

V.  Mahorner 

176 

119 

V.  Meadors 

504 

80 

V.  Moseley 

280 

285 

V.  Nixon 

17 

454 

V.  Rowley 

193 

418 

V.  Sterry 

IS 

131 

v.  Turbeville 

147 

466,  525 

7>.  Vreeland 

366 

428,  429 

Harrison's  Appeal 

85 

217 

Hart  V.  Bostwick 

160 

451 

V.  Coltrain 

27 

421 

V.  Hart 

357 

546 

V.  Jewett 

424,  428 

212,  509 

V.  Rust 

63,  402 

116 

V.  Smith 

128 

398,  422 

V.  Soward 

98 

545 

V.  Ten  Eyck 

230 

98 

Harter  v.  Harter 

8s 

480 

V.  Taggart 

390 

153 

Hartnett  v.  Wendell 

36,41.42 

256,  397 

Hartsfield  v.  Allen 

308 

32,  106 

Hartwell  v.  Chitters 

221 

TABLE    OF    CASES. 


xlvii 


Section 

Section 

Hartwell  v.  Rice 

500 

Heath  v.  Belk 

428 

Hartz's  Appeal 

146 

V.  Chilton 

292,  403 

Hartzell  -'.  Commonwealth 

140 

V.  Cale 

75 

Harvard  College  v.  Amory 

324 

V.  Wells 

390 

Harvey,  Goods  of 

84 

Heatherington  v.  Lewenburg 

479 

Harvey,  Re 

130 

Hedderly  v.  Downes 

378 

Harvey  i\  Harvey 

482 

Hedrick  v.  Tuck  wilier 

331 

V.  Richards 

174, 

179 

lledenberg  v.  Hedenberg 

i73>  '79 

Harwood  v.  Goodright 

4 

Heermans  v.  Hill 

72 

Hasbrouck  v.  Hasbrouck 

356 

Hegarty's  Appeal 

59.85 

Haskell  v.  Bovven 

292 

Hegerich  v.  Keddie 

283 

Haskett,  Re 

135 

Heighway  v.  Pendleton 

214 

Haskins  v.  Miller 

118 

Hellen  v.  Wideman 

288 

Hassall  v.  Smithers 

211 

Helm  V.  Van  Vleet 

294 

Hassinger's  Appeal 

"3 

Helme  v.  Sanders 

170 

Hastings,  Goods  of 

I'S 

Hemphill  v.  Moody 

487 

Hastings  v.  Myers 

456 

Henderson  v.  Ayers 

439 

V.  Rider 

73 

V.  Clarke 

120 

Hatch  V.  Hatch 

502 

V.  Henderson 

329,  331 

V.  Proctor 

195 

V.  Ilsley 

411 

Haschett  v.  Berney 

176 

V.  Simmons 

510,  542 

Hathaway  v.  Sherman 

202 

211 

Hendricks  v.  Snodgrass 

128 

Hathaway's  Appeal 

65 

V.  Thornton 

405 

Hathornthwaite  v.  Russell 

7>Z 

Hendrickson  v.  Hendrickson 

514 

Hattatt  V.  Hattatt 

62 

Hendrin  v.  Colgin 

130 

Hauck  V.  Stauffer 

509 

Hendrix  v.  Hendrix 

510 

Haugh  V.  Seabold 

452 

Hendry  v.  Cline 

310 

Hawes  v.  Humphrey 

76,8 

1,85 

Henfrey  v.  Henfrey 

36 

V.  Smith 

255 

Hengst's  Appeal 

402,  525 

Hawke  v.  Wedderburne 

116 

Henry  v.  Estey 

418 

Hawkes  v.  Saunders 

395 

Henry's  Succession 

116 

Hawkins  v.  Day                 402 

436,  476 

Henry  County  v.  Taylor 

387 

V.  Glass 

370 

Henshaw  v.  Blood 

233 

V.  Hawkins 

76 

V.  Miller 

280 

V.  Johnson 

186 

Hensley  v.  Dennis 

271 

V.  Ridenhour 

418 

Henson  v.  Ott 

218 

V.  Robinson 

lOI 

Hepburn  v.  Hepburn 

273 

Havvley  v.  Botsford 

390 

Hernandez,  Goods  of 

139.  145 

V.  James 

509 

Heron,  Estate  of 

104 

Haxall  V.  Lee 

"5 

Heron  v.  Hoffner 

403 

Haydock  v.  Haydock 

79 

Herrick  v.  Wright 

470 

Haynes  v.  Forshaw 

239 

Herriman  v.  Janney 

142 

V.  Haynes 

74 

490 

Herring  v.  Whittam 

461 

V.  Meek 

156 

Herron  v.  Marshall 

360 

Haynsvvorthy  v.  Frierson 

203 

Hesson  v.  Hesson 

403 

Hays  V.  Doane 

227 

Hester  v.  Hester                 407 

467,  506 

V.  Hays 

402 

V.  Wesson 

255 

V.  Jackson 

250 

494 

Hewett  V.  Bronson 

421 

V.  Matlock 

504 

Heydock's  Appeal 

174 

Haythorp  v.  Neale 

360 

Heyer's  Appeal 

532 

Hazelden  v.  Whitesides 

195 

Hibbard  v.  Kent 

120 

Hazen  v.  Darling 

146 

Hickling  v.  Boyer 

381 

Head  v.  Bridges 

402 

Hickman  v.  Kamp 

233 

V.  Sutton 

206 

213 

Hicks  V.  Chouteau 

144 

Heady's  Will 

77 

Hieschler,  Re 

45 » 

Heager's  Executors 

441 

Higbee  v.  Bacon 

525 

Heard  v.  Drake 

444 

446 

Higgins  V.  Driggs 

398" 

V.  Northington 

211 

V.  Higgins 

23>.476 

Hearth  v.  Heddlestone 

346 

V.  Rector 

428 

Heath  v.  Allin                    355 

,357 

402 

Hight  V.  Wilson 

74,75 

xlviii 


TABLE    OF    CASES. 


Section 

Hill  V.  Alspaugh 

"5 

V.  Buford 

443 

V.  Cock 

217 

V.  Gomme 

476 

V.  Henderson 

189,  190 

V.  Simpson 

349,  350,  357 

V.  Tucker 

31.42,  179 

V.  Walker 

389 

Hillman  v.  Stephens 

522 

Hilyard's  Estate 

479 

Hindman  7'.  State 

334 

Hindmarsh  v.  Charlton 

77 

Hines  71.  Ilines 

208 

Hinton  v.  Bland 

128 

V.  Parker 

236 

Hirschfield  v.  Cross 

522 

Hirst  V.  Smith 

410 

Hobart  v.  Connecticut  Turnpike  Co.  1 73 

Hobbs  V.  Craige 

522 

Hobson  V.  Ewan 

25,92 

Hodgdon  v.  White 

389 

Hodgson  V.  Fox 

508 

V.  Shaw 

427 

Hoffman  v.  Wilding 

213 

Hogan  V.  De  Peyster 

324,  335 

V.  Grosvenor 

77 

Hoke  V.  Fleming 

400 

V.  Hoke 

316 

Holbert,  Succession  of 

421 

Holbrook  v.  Bentley 

137 

V.  Head 

Z7> 

Holcomb  V.  Holcomb 

264,  308 

V.  Phelps 

15 

V.  Sherwood 

527 

Holcombe  v.  Beach 

289,  293 

V.  Holcombe 

402 

Holden  v.  Blaney 

82 

V.  Fletcher 

419 

Holland  v.  Hughes 

324 

7>.  Prior 

519 

HoUenbeck  v.  Pixley 

449,451 

Hollis  V.  Smith 

291 

Hollister  v.  Attmore 

500 

Holman  v.  Perry 

160 

V.  St.  John 

369 

Holmes,  In  re 

128 

Holmes  v.  Bridgman 

308 

V.  Holmes 

120,  496 

V.  Remsen 

16 

Holt  V.  Murray 

426 

Holyoke  v.  Mutual  Life  Ins.  Co.        24 

Hone  V.  Lockman 

546 

Honywood,  Goods  of 

85 

Hood,  Re 

155-  247 

Hood  V.  Lord  Barrington 

57,  58,  160 

Hook  V.  Payne 

538 

Hooker  v.  Bancroft 

230 

Hooper  v.  Bryant 

418 

V.  Goodwin 

368 

V.  Gorham 

282 

Section 


Hooper  v.  Moore 

170 

V.  Olmstead 

'74 

V.  Scarborough 

128,  154 

V.  Stewart 

92,  153 

V.  Summersett 

186,  187 

Hooper's  Will 

473 

Hoover  v.  Miller 

236 

Hopkins  v.  Morgan 

256,  397 

V.  Towns 

186 

Hopkinson  v.  Leach 

439 

Horn  V.  Pullman 

79 

Hosack  V.  Rogers 

157 

Hough  V.  Bailey 

362 

V.  Harvey 

538,  545 

House  V.  House 

227 

Houston,  Goods  of 

139 

Houston  V.  Howie 

265 

Houts  V.  Shepherd 

337 

Hover  v.  Agnew 

457 

Hovey  v.  Hovey 

457 

V.  Blakeman 

402 

V.  Newton 

375 

V.  Page 

280 

V.  Smith 

540 

Howard  v.  Dougherty 

13s 

V.  Howard 

518 

V.  Leavell 

420 

Howcott  V.  Warren 

284 

Howe  V.  Lord  Dartmouth 

324 

V.  Peabody 

142 

Howel  V.  Price 

430,  512 

Howell  71.  Howell 

288 

V.  Metcalfe 

135 

V.  Reams 

427,  435 

Howland  v.  Coffin 

376 

V.  Green 

473 

Hoxie  V.  Hoxie 

474 

Hubbard  v.  Alexander 

468 

V.  Barcas 

98 

V.  Hubbard 

89,  439 

Hubble  V.  Fogartie 

184,  187 

Hudson  V.  Breeding 

420 

V.  Hudson 

404 

Huff  z/.  Thrash 

405 

V.  Watkins 

283,  370 

Huger  V.  Dawson 

435 

Hughes,  Re 

166,  173 

Hughes  V.  Turner 

60 

Huggins  V.  Tole 

282 

Hughlett  V.  Hughlett 

140,  406 

Huldane  v.  Eckford 

21 

Hull  V.  Neal 

28 

Hulse's  Will,  Re 

75 

Humbert  v.  Wurster 

195 

Humphrey  v.  Merritt 

226 

Humphreys  v.  Keith 

506 

Humphrey's  Estate 

81 

Hunt,  Goods  of 

63 

Hunt  V.  Hamilton 

140 

Hunter  v.  Bryson 

37,42 

TABLE    OF    CASES. 


xlix 


Hunter  7:  Hunter 
Hurlburt  -'.  Wheeler 
Hursey  t'.  Cofiin 
Husliand  t.  Pollard 
Huse  v-  Brown 
Hussey  i'.  Coffin 
Hutchenson  v.  Pigg 
Hutcheson  v.  Priddy 
Hutchins  2'.  State  Bank 
Hutchinson  v.  Lambert 

V.  Owen 

V.  Priddy 

V.  Reed 
Hutchinson's  Appeal 
Hutton  v.  Williams 
Hyatt  V.  McBurney 
Hyde  v.  Neate 
Hyland  v.  Baxter 


I. 


Section 

403 

540 

33 

304 
423 

»S4 
146 
116 
175,  176,  352 
124 
310 

153 
200 

535 
523 
402 
470 
543 


Idley  v.  Bowen  84 

Ikelheimer  v.  Chapman  346 

Illinois  Central  R.  v.  Crazin  26, 169, 

170 

Inches  v.  Dickinson  376 

Inchiquin  r'.  French  62 

Ingle  -'.  Jones  413 

V.  Partridge  323 

V.  Richards  58,  391 

Ipswich  Man.  Co.  v.  Story  208 

Ireland  v.  Corse  545 

Irvin  v.  Ironmonger  478 

Irwin's  Appeal  171 

Isham  V.  Gibbons  172 

Ivens  v.  Elvves  428 

Ives  V.  AUyn  57 

V.  Ashley  358,  515 

V.  Salisbury  20 


J- 

Jackson  v.  Chase  310 

V.  Hilt  391 

V.  Holloway  84 

V.  Paulet  41 

V.  Phillips  463,  464 

V.  Jackson  500 

V.  Vaudalfsen  358 

Jacob  V.  Emmett  538 

Jacobs  V.  Woodside  208 

Jacob's  Appeal  346 

Jacobus  V.  Jacobus  2 1 8,  317 

Jacoml)  z'.  Harwood  404 

Jacques  v.  Chambers  486 

James  v.  Beesley  509 

James's  Appeal  256,  318 

Jamison  v.  Lillard  406 


Section 


Jarvis  v.  Rogers 

370 

Jeeter  i'.  Durham 

428 

Jefferson's  Estate 

428 

Jemison  z'.  Smith 

170 

Jenkins,  (Joods  of 

^il 

Jenkins,  Will  of 

74,81 

Jenkins  v.  French 

370 

V.  Jenkins 

4«7 

V.  .Mitchell 

500 

V.  Smith 

370 

Jenney  t.  Jenney 

281 

Jennings  t'.  Copeland 

213 

t:  Davis 

247 

V.  Newman 

395.  397 

Jennison  v.  Hapgood  16,  175, 

180,421, 

422,  530, 

538,  547 

Jenningham  v.  Herbert 

19 

Jerromsz/.  Jerroms 

404 

Jessup  V.  Spears 

433 

Jillett  V.  Union  Nat.  Bank 

428 

Job  7K  Job 

3>5 

Johns  V.  Johns              137,  194, 

195,  201 

V.  Lawrence 

545 

V.  Norris 

358 

Johnson  v.  Arnold 

217 

V.  Ames 

205 

V.  Baker 

421 

V.  Belden 

500 

V.  Brady 

428 

V.  Brown 

310 

V.  Corbett           404,  428, 

444,  446, 

451.542 

V.  Cross 

461 

z>.  Cushing 

222 

V.  Fuquay                      141, 

147,  247 

V.  Halliday 

5i3« 

V.  Henry 

450 

V.  Hogan 

408 

V.  Jackson 

177 

V.  Longmire 

506 

V.  Molsbee 

416 

V.  Newton 

322 

V.  Parnell 

S'o 

7>.  Patterson 

214 

V.  Pierce 

288 

V.  Richards 

527 

V.  Slawson 

428 

V.  Von  Kettler 

433 

V.  Warwick 

194 

V.  W'aters 

390  <^ 

V.  Wiseman 

227 

V.  W'oods 

217 

Johnson's  Will 

184 

Johnston,  Goods  of 

172 

Johnston  v.  Fort 

504 

V.  Morrow 

422 

Johnston  v.  Tatum 

116 

V.  Union  Bank 

396 

Johnston's  Estate 

356 

Jones,  Ex  parte 

541 

TABLE    OF    CASES. 


Section 


Sectt< 


Jones,  Goods  of 

37 

Kearney  v.  Turner 

102,  129 

Jones,  f!e                            326, 

535.  541 

Kearsley  v.  Oxley 

376 

Jones  V.  Beytagh 

124 

Keates  v.  Burton 

49 

z>.  Bittenger 

112 

Keating  v.  Keating 

353 

V.  Bouhvare 

428 

Kee  V.  Kee 

316 

V.  Carter 

374 

Keefer  v.  Schwartz 

407 

V.  Clark 

350 

Keister  7j.  Howe 

106 

V.  Dixon 

141 

Keith  V.  Parks 

428,  438 

V.  Evans 

439 

Kellar  v.  Beelor 

330 

V.  Fox  all 

538 

Kellberg's  Appeal 

154 

V.  Gerock 

174 

Keller's  Appeal 

308 

V.  Gordon 

141,  142 

Kelley  v.  Riley 

280 

V.  Habersham 

74 

Kellow  V.  Central  Iowa  R 

283 

V.  Hooper 

334 

Kelsey  v.  Smith 

409 

V.  Irwin 

520 

Kelso  V.  Vance 

361 

V.  Jenkins 

256 

Kelly  V.  Davis 

508 

V.  Jones               109,  144, 

407,  522 

V.  Kelly 

408 

V.  Jukes 

437 

V.  West 

'53.  160,  531 

V.  Letcher 

483 

Kemp  V.  Waddingham 

426 

V.  Lewis 

315 

Kendall  v.  Bates 

386,  387 

V.  Littlefield 

372 

Kennedy  v.  Kennedy 

18,  174 

V.  Logan 

305 

Kennerly  v.  Wilson 

284 

V.  McCleod 

428 

Kent  V.  Cloyd 

520 

V.  Moore 

391 

V.  Dunham 

479,  481 

V.  Moseley 

67 

V.  Stiles 

247 

V.  Nicholay 

63 

Kerchner  v.  McRae 

397 

V.  Richardson 

138 

Kernochan,  Re 

479 

V.  Ritter 

135.  147 

Kerr  v.  Dougherty 

459 

V.  Simmons 

342 

V.  Hill 

542 

V.  Stites 

324 

V.  Kerr 

153 

V.  Thurmond 

305 

V.  Moon 

19,  164,  173 

V.  Warnock 

515 

V.  Water 

402 

V.  Williams 

464,  522 

V.  Wimer 

428 

V.  Walker 

326 

Kersey  v.  Bailey 

449.  451 

V.  Ward 

316,  542 

Key  V.  Hollo  way 

79 

V.  Wightman 

213 

Kidd's  Estate 

141 

Jones's  Appeal                   402, 

508,  510 

Kidwell  V.  Kidwell 

213,  216 

Jordan,  Goods  of 

31 

Killam  v.  Costley 

154 

Jordan  v.  Pollock 

288 

Killigrew  v.  Killigrew 

33 

V.  Polk 

135 

Kilpatrick  v.  Bush 

179 

V.  Thornton 

488 

Kimball  v.  Sumner 

213,  510 

Joslin  V.  Caughlin 

346 

Kimmell  v.  Burns 

430 

Jubber  v.  Jubber 

465 

Kinard  v.  Riddlehoover 

67 

Judge  of  Probate  v.  Claggett 

140,  146 

King  V.  Anderson 

216 

V.  Ellis 

3903 

V.  Clarke 

179 

V.  Heydock 

146 

V.  Foxwell 

21 

Judson  V.  Connolly 

297 

V.  Green 

408,  410 

V.  Gibbons 

51 

V.  Jones 

285 

Juler  V.  Juler 

494 

V.  Kinsey 

75 

Julian  V.  Reynolds 

358 

V.  Lyman 

191 

V.  Morrison 

321 

V.  Shackleford 

403 

K. 

V.  Talbert 

413,  487 

V.  Thorn 

258,  293 

Kain  v.  Fisher 

226 

V.  Vairin 

89 

Kaminer  v.  Hope 

134,  506 

V.  Whiton 

„  509 

Kane  v.  Paul 

160 

King's  Estate 

478,  481 

Kansas  Pacific  R.  v.  Cutler 

173 

Kingdon  v.  Nottle 

28s 

Karr  v.  Karr 

247 

Kingman  v.  Kingman 

451.  453 

Keane,  Goods  of 

"5 

Kinmonth  v.  Brigham 

324 

TABLE    OF    CASES. 


Kingsbury  v.  Scovill 

zi.  Wilmarth 
Kingoland  7>.  Scudder 
Kinnan  v.  Wight 
Kirbv  z'.  State 

Kircudbright  7'.  Kircudbright 
Kirlcman  v.  Benham 

V.  Boothe 
Kirtlan,  Kstate  of 
Kittredge  v.  Folsom 
Kyle  V.  Kyle 
Kline  v.  Gathart 

V.  Moulton 
Kline's  Appeal 
Kling  v.  Hummer 
Knight  V.  Davis 

V.  Gould 

V.  Haynie 

V.  Knight 

V.  Lasseter 

V.  Loomis  37,  407, 

V.  Oliver 

V.  Yarborough 
Knights  V.  Quarles  280, 

Knowlton  v.  Johnson 
Knox  V.  Bigelow 
Kohler  v.  Knapp  200, 

Konvalinka  v.  Schlegel 
Koon  7/.  Munro 
Kooystra  v.  Buyskes 
Kost's  Appeal 
Krone  v.  Cooper 
Kurtz  V.  Saylor 


L. 

Labin  v.  Emigrant  Bank 

Labouchere  v.  Tupper 

Lacam  v.  Merlins 

Lacey  v.  Davis  320, 

Lackland  v.  Stevenson 

Lacroix,  Goods  of 

Lacy  V.  Stamper 

Ladd  V.  Wiggins 

Lafayette  Ins.  Co.  v.  Harris 

Lagarde,  Succession  of 

Lahey  v.  Brady 

Laible  v.  Ferry 

Laidley  v.  Kline 

Lamb  v.  Helm 

V.  Lamb 
Lambert  v.  Crafts 
Lamine  v.  Dorrall 
Laming  v.  Gee 
Lancaster,  Goods  of 
Landers  v.  Stone  91, 

Landis  v.  Saxton 
Landry  v.  Delas 
Laneuville  v.  Anderson 


Section 

Section 

507 

Langbein,  Re 

171 

451 

Langford,  Goods  of 

40 

544 

Langford  v.  Mahoney 

409 

525 

Langham  z'.  Baker 

390 

33^ 

V.  Sanford 

494 

498 

Langley,  Goods  of 

152 

329 

Langley  v.  Harris 

'37 

257 

7'.  Havvke 

3i 

112 

V.  Lord  Oxford 

343 

160 

Langworthy  7'.  Baker 

116 

525 

Lanier  v.  Irvine 

140,  433 

289,  290 

Lank  7'.  Kinder 

400 

213,  510 

Lansdowne  7'.  Lansdowne 

374.  487 

504 

Lansing  7'.  Lansing 

335.  485 

402 

Lappin  v.  Mumford 

2CX3,  240 

381 

Lark  v.  Linstead 

488 

400 

Larkins  v.  Paxton 

437 

402 

Laroe  v.  Douglass 

532 

482 

La  Rue  v.  Gi  Iky  son 

43  > 

408 

Lathrop  z>.  Smith 

100,  103 

4I3>  538 

Latta  V.  Miller 

362 

500 

Laughlin  7'.  Lorenz 

251,  326 

346 

Laughton  7'.  Atkins 

60 

286,  366 

Laundy  v.  Williams 

478 

527 

Lawrence  v.  Elmendorf 

18,  174 

292 

V.  Embree 

481 

216,  547 

V.  Hebbard 

17 

457 

V.  Kemp 

227 

520 

V.  Kitteridge 

174 

125 

V.  Lawrence 

'73 

541 

V.  Parsons 

'35 

21 

V.  Wright 

195 

17 

Lawrence's  Appeal 

515" 

Lawrence's  Will 

'53 

Laws  V.  Thompson 

428 

Lawson  v.  Hausborough 

444 

7'.  Lawson 

292 

92 

V.  Stitch 

461 

326 

Lawson's  Appeal 

500 

427 

Lawton  v.  Fish 

487 

324,  402 

Lay  V.  Lay 

43 

123 

V.  Mechanics'  Bank 

390 

169 

Laycock  v.  Oleson     289,  292, 

293.  403 

324,  416 

Leach  v.  Pittsburg 

184 

201 

Leake  v.  Beanes 

230 

25 

V.  Gilchrist 

91.  173 

310 

V.  Leake 

324 

371 

Leathers  v.  Greenacre 

89 

326 

Leaven's  Estate 

504  a 

212 

Le  Baron  v.  Long  Island  Bank         352 

134,  135 

400,  402 

346 

Ledbetter  v.  Lofton 

'57 

418 

Leddell  v.  Starr 

'57 

160 

Lee  V.  Chase                       277, 

278,  297 

519 

V.  Lee 

509 

31,  60 

V.  Patrick 

418 

,  95,  250 

V.  Sedgwick 

103 

537 

Leeds  Banking  Co.,  Re     326, 

345.  380 

388 

Leese,  Goods  of 

40 

17 

Leese  v.  Wetmore 

27,91 

lii 


TABLE    OF    CASES. 


Section 

Section 

Lefever  v.  Hasbrouck 

324 

Littlefield  v.  Eaton          230,  390,  446  A 

Legarde,  Succession  of 

329 

Livermore  7/.  Bemis 

'51 

Legate  v.  Moulton 

284 

V.  Wortman 

322 

Lehr  v.  Turball 

154 

Liverpool  Bank  v.  Walker 

379 

Lehr's  Appeal 

527 

Livingston  7).  Newkirk 

243 

Leib  z'.  Wilson 

16,  456 

Lloyd  v.  Chambers 

55 

Leigh  f.  Barry 

402 

V.  Crispe 

353 

Leitch  v.  Wells 

339 

V.  Finlayson 

160 

Leland  v.  Felton 

208 

V.  Mason 

94.  430 

V.  Kingsbury 

503.  504 

Lloyd's  Estate 

538 

V.  Manning 

170 

Loane  v.  Casey 

439 

Le  Mason  v.  Ditson 

372 

Lockhart  v.  Public  Administrator     334 

Le  Moyne  v.  Quimby 

212,  515 

V.  White 

433 

Lendon  v.  Woodward 

316 

Lock  wood  7J.  Gilson 

260 

Lent  2'.  Howard 

545 

71.  Stockholm 

130 

Lentz  v.  Pilert 

"5 

Loeven's  Estate 

236 

Leonard  v.  Nye 

200 

Logan  71.  McGinnis 

81 

Leonino  v.  Leonino 

430 

Lomas  v.  Wright 

475 

Lepard  7'.  Vernon 

400,  437 

Lommen  7>.  Tobiason 

538 

Le  Piince  v.  Guillemot 

428 

Longford  7>.  Eyre 

•  77 

Lerch  v.  Emmett 

422 

Long  V.  Easley 

115,  129 

Le  Sage  v.  Coussmaker 

36S 

V.  Hitchcock 

279 

Lesher  v.  Wirth 

455 

V.  Huggins 

126 

Leslie  v.  Marshall 

474 

V.  Kent 

489 

Levan's  Appeal 

104 

V.  Morrison                  280, 

282,  366 

Leverett  v.  Dismukes 

no 

V.  Symes 

46 

Levering  v.  Levering 

157 

V.  Wortham 

157 

Lewes,  Trusts,  Jie 

484 

Longley  v.  Hall 

545 

Lewin,  Trusts 

44 

Longuet  v.  Scawen 

214 

Lewin  v.  Lewin 

490 

Loper,  Matter  of 

387 

Lewis,  J?e 

542 

Lord  V.  Lord 

478 

Lewis  V.  Lusk 

230 

Loomis  V.  Armstrong 

545 

V.  Lyons 

242 

Lorimer,  Goods  of 

44 

V.  Reed 

341 

Loring  7j.  Bacon 

148 

V.  Ringo 

223 

V.  Cunningham 

200,  218 

V.  Rumney 

389 

V.  Oakey 

170 

V.  Watson 

147 

V.  Park 

76 

L'Fit  V.  L'Batt 

86,  169 

V.  Steineman 

527 

Libby  v.  Christy 

346 

Lothrop  V.  Wightman 

241,  358 

V.  Cobb 

414 

Lott  V.  Meacham 

156,  488 

Liddell  v.  McVickar 

526, 537.  542, 

Lougher  v.  Williams 

285 

544 

Lovell  V.  Field                    256, 

364.  397 

Lidderdale  v.  Robinson 

428,  525 

V.  Minot 

324 

Lightcap's  Appeal 

532 

Levering  v.  Minot 

479 

Lighten,  Goods  of 

40,42 

Low  V.  Bartlett 

174 

Lillard  z'.  Reynolds 

488 

Lowe  7J.  Jones 

418 

Lilly  V.  Griffin 

544 

Lowry  v.  Commercial  Bank 

352 

V.  Stahl 

504 

V.  Fulton 

44 

J^incoln  v.  Wright 

402 

V.  Newsom 

506 

Lindsay  v.  Lindsay 

32 

Lowson  V.  Copeland 

308 

Lingle  7j.  Cook 

.    148 

Loy  V.  Kennedy 

75 

Linsenbigler  7>.  Gourley 

288 

Lucas  7'.  Brooks 

62 

Lister  v.  Smith 

71 

V.  Doe 

407 

Litchfield  v.  Cudworth 

358 

Luce  7'.  Manchester 

173,  228 

V.  FUnt 

256,  293 

Lucht  V.  Behrens 

325.  326 

Litterdale  v.  Robinson 

145 

Luckey,  /i^ 

422 

Little  V.  Berry 

125 

Luaj  V.  Levington 

285 

V.  Little 

418 

Lucy  V.  Lucy               212,  213 

428,  510 

V.  Sinnett 

91,  93,  420 

Ludlam's  Estate 

461 

V.  Walton 

245 

Ludlum  V.  Otis 

62 

TABLE    C 

F    CASES. 

liii 

Section 

SectloD 

Lukton  V.  Jenney 

275 

Markland  v.  Albes 

"5 

Lund  V.  Lund              421,  422 

542 

546 

Marr  ~o.  Play 

46 

Lungren  v.  Swartzwelder 

63 

Marrion  v.  Titsworth 

18,  174 

Luscomb  V.  Ballard    195,  395 

397 

398 

Marsden,  Ke 

63 

Lusk  V.  Anderson 

544 

Marsden  v.  Kent 

348,  355 

Luster  v.  Middlecoff 

142 

Marsh  v.  Evans 

490 

Luthani  v.  Moore 

362 

V.  Harrington 

406 

Lyall  V.  Paton 

23 

V.  People 

408 

Lyle  V.  Williams 

507 

541 

V.  Richardson 

520 

Lynch  v.  Baxter 

361 

Marshall  v.  Broadhurst 

253 

V.  Uivan 

236 

V.  Carson 

509 

V.  Bellew 

40 

V.  Hitchcock 

527 

V.  Paraguay 

16 

V.  Holloway 

381 

Lynn  v.  Sisk 

370 

V.  King 

120 

Lyon,  Ex  parte 

135 

V.  Moore 

321 

Lyon  V.  Hays 

258 

Marston  v.  Paulding 

264 

V.  Home 

79 

Martin  v.  Black 

376 

V.  Lyon 

321 

358 

V.  Boler 

236 

V.  Magagnos 

481 

487 

V.  Bradley 

370 

V.  Marshall 

289 

293 

V.  Clapp 

270 

V.  Osgood 

146 

V.  Curd 

430 

Lyons,  Ex  parte 

128 

V.  Elerbe 

410 

Lytle  V.  Beveridge 

358 

V.  Gage 

179 

Lyttleton  v.  Cross 

437 

V.  Lapham 
V.  Martin 
V.  McConnell 

477 
403,  482 

346 

M. 

V.  Perkins 
V.  Root 

67,70 
220,  297 

Mackey  v.  Coxe                  165, 

174. 

176 

V.  Williams 

391 

Mackintosh  v.  Barber 

405 

Martin's  Appeal 

428 

Macnamara  v.  Jones 

544 

Martineau  v.  Rogers 

473 

Macpherson  v.  Macpherson 

402 

Marvel  v.  Babbitt 

408 

Maddox  v.  Apperson 

263 

Mason  v.  Man 

417.431 

Madison  v.  Shockley 

186 

204 

V.  Nutt 

164 

Magee  v.  Vedder 

420 

Mason,  Re 

546 

Magner  v.  Ryan 

195 

M  assay  v.  Cureton 

356 

Magoffin  V.  Patton 

482 

Masten  v.  Blackwell 

378 

Magraw  v.  Irwin 

179 

Masterman  v.  Maberly 

63 

V.  McGlynn                  420, 

441, 

525 

Mathes  v.  Bennett 

448,449,451 

Mahon  v.  Allen 

256 

Mathews  v.  Meek 

410,413 

Maidman  v.  All  Persons 

"5 

Matthews  v.  Brise 

321 

Main  v.  Ryder 

74 

r.  Matthews 

397.  457 

Mairs  v.  Freeman 

75 

Mawhorter  v.  Armstrong 

357 

Maitland  v.  Adair 

467 

Maxwell,  Re 

50,  122,  142 

Malone  v.  Kelley 

335 

Maxwell  v.  Craft 

507 

Malony's  Appeal 

543 

V.  Maxwell 

473 

Maltass  v.  Maltass 

20 

V.  McClintock 

525 

Maltby  v.  Russell 

437 

V.  Wettenhall 

481 

Mandeville  v.  Mandeville    33, 

no, 

"3 

May  V.  May 

258 

137 

V.  Vann 

418 

Manly,  In  re 

36 

V.  Woodward 

378 

Mann  v.  Everts 

418 

Maychell,  Goods  of 

106,  113 

V.  Lawrence 

421, 

542 

Mayo  V.  Bentley 

438 

Manning  v.  Manning 

324, 

500 

V.  Clancy 

526 

Mansfield  v.  Twipin 

173 

McAfee  v.  Phillips 

526.  533 

Man  well  v.  Briggs      1 90,  279, 

281, 

290 

McArthur  v.  Scott 

460 

Maples  V.  Milton 

226 

McBeth  V.  Hunt 

100,  1 1 3 

Maraman  v.  Trunnell 

258, 

260 

V.  Smith 

410 

March  v.  Russell 

491 

McBride  v.  McBride 

63 

Marcy  v.  Marcy 

70 

McCabe  v.  Lewis 

153.415 

liv 


TABLE    OF    CASES. 


Section 

Section 

McCall,  Estate  of 

538 

McGill  V.  McGill 

253 

McCall  V.  Peachy 

316,  335 

V.  Monette 

321 

McCaffrey's  Estate 

153 

McGinnis  v.  Kempsey 

79 

McCalley  v.  Wilburn 

398  a 

McGlinsey's  Appeal 

422 

McCampbell  v.  Gilbert 

146 

McGloin  V.  Vanderlip 

256 

McCandlish  v.  Hopkins 

"5 

McGooch  V.  McGooch 

104 

107 

McCartney  v.  Calhoun 

358 

McGovney  v.  Slate 

28 

V.  Osborne 

McGrath  v.  Barnes 

258 

390 

McCauley  v.  Harvey 

155 

McGregor  v.  McGregor 

32,33 

403 

McCarty  v.  Frazer 

208 

McGuire  v.  Buckley 

116 

V.  Hall 

164 

McHardy  v.  McHardy 

544 

McChord  v.  Fisher 

143 

Mcintosh  V.  Humbleton 

417 

McClane  v.  Spence 

246 

McKay  v.  McDonald 

147 

McClellan's  Appeal  lOO,  no, 

III,  112, 

McKeen  v.  Frost 

76 

"3 

McKenzie  v.  Anderson 

331 

335 

McClellan  v.  Filson 

421,  424 

V.  Pendleton 

189 

McCloskey  v.  Gleason 

321 

McKey  v.  Young 

358 

McCord  V.  Thompson 

179 

McKim  V.  Harvvood 

230 

522 

McCormick  v.  Wright 

402 

McKnight  v.  Morgan 

297 

McCorn  v.  McCorn 

490 

McLane  v.  Spence 

108 

McCreary  v.  Taylor 

151 

McLaren  v.  McMartin 

389 

McCurley  v.  McCurley 

370 

McLaughlin  v.  Dorsey 

284 

McCiintock's  Appeal 

428 

V.  Nelms 

522 

McClure  v.  Askew 

491 

V.  Newton 

439 

V.  Bates 

173 

McLead  v.  Davis 

213 

V.  McClure 

443 

McLean  v.  Weeks 

220 

V.  Miller 

279 

McLenahan  v.  McLenah 

an 

512 

V.  Owens 

430 

McLeod  V.  Drunimond 

349,  350. 

352, 

McCollum  V.  McCollum 

347 

357 

359 

McConico  v.  Cannon 

507 

V.  Johnson 

506 

McConnell  v.  McConnell 

189 

McLoon  V.  Spaulding 

530 

McCord  V.  McKinley 

451 

McMahon  v.  Allen 

408 

McCormack  v.  Cook 

390 

V.  Harrison 

104 

107 

McCormick  v.  McCormick 

307 

McMeekin  v.  Huson 

148 

McCoy  V.  Green 

438 

McMurrey  v.  Hopper 

390 

V.  Paine 

193 

McNabb  v.  Pond 

227 

V.  Scott 

213 

McNair  v.  Dodge 

119 

McCracken  v.  Graham 

528 

McNair's  Appeal 

335 

417 

McCulloch  V.  Dawes 

389 

McNairv  v.  Bell 

135 

McCustian  v.  Ramey 

3" 

McNeill  V.  McNeill 

265 

McDaniel  7a  Johns 

307 

McNulty  V.  Hurd 

428 

McDaniels  v.  McDaniels 

387 

V.  Pruden 

428 

McDeavman  v.  Maxfield 

238 

McPike  V.  Wells 

212 

McDonald,  Ex  parte 

37 

McQueen,  Estate  of 

538 

McDonald,  Re 

334.  355 

McRae  v.  David 

141 

McDonald  v.  King 

407 

V.  McRae 

328, 

355 

V.  McDonald 

526 

McWhorter  z'.  Benson 

542 

McDonough,  Succession  of 

154 

McWillie  v.  Van  Vacter 

236 

McDowall  V.  McDowall 

402 

Mead  v.  Byington 

341,  346, 

354, 

McEldry  v.  McKenzie 

256 

355,358, 

543 

McElroy  v.  Hatheway 

534 

V.  Orrery 

488 

McElwee  v.  Ferguson 

79 

Meadows  v.  Meadows 

500 

V.  Story 

255 

Mecklenburgh  v.  Bissell 

153 

McFadgen  v.  Council 

154 

Meech  ?'.  Weston 

451, 

453 

McFarlin  v.  Stinson 

256 

V.  Vanderveer 

251 

McFeeley  v.  Scott 

92,  160 

McMeekin  v.  Hynes 

190 

McGar  v.  Nixon 

441 

McMillan  v.  Rushing 

509 

McGehee  v.  Polk 

174 

McReynold's  Estate 

448 

V.  Slater 

289 

Meeks  v.  Vassault 

213 

McGhee  v.  Kagan 

118 

Megit  V.  Johnson 

503 

TABLE    OF    CASES. 


Iv 


Mellen  v.  Baldwin 
Menifee  z>.  Ball 
Menzies  z'.  Pulbrook 
Mercer  "'.  Mackin 

V.  Xewson 
Merchant,  AV 
Meiiden  Steam  Co.  v.  Guy 
Merket  z'.  Smith 
Merkle  z'.  Bennington 
Merriam  v.  Hemmenway 


Section 

37 « 
247 

69 
82,  84 

358 
200 
428 

247 
128 
408 


115,  I 


77. 


Merrill  v.  N.  E.  Life  Ins.  Co. 

163,  167,  175 

Merritt  v.  Buckman  479 

V.  Dickey  345 

V.  Merritt  325 

V.  Seaman  292 

Metcalfe,  Goods  of  134 

Meurer's  Will  75,  77,  78 

Michel,  Succession  of  346,  361 

Michener  v.  Dale  219 

Mickle  V.  Miles  223 

Middleton  v.  Robinson  288 

V.  Spicer  494 

Mikell  zj.  Mikell  315 

Miles  V.  Doyden  82,  483 

V.  Dumford  405 

V.  Peabody  542 

V.  Wheeler  355,  358 

Millard  v.  Harris  541 

Miller,  Succession  of  116 

Miller  v.  Alexander  408,  410 

V.  Binion  358 

V.  Congdon  478,  481,  485 

V.  Donaldson  409 

V.  Dorsey  389 

V.  Eatman  120 

V.  Harrison  417 

v.  Henderson  362 

V.  Janney  435 

V.  Jones  428 

V.  Keith  118 

V.  McNeill  77 

V.  Meetch  47,  51 

V.  Miller  60,  453 

V.  Philip  478 

V.  Proctor  335 

V.  Towles  441 

V.  Umberhower  279 

V.  Williamson  256,  352 

V.  Wilson  282,  366 

Miller's  Appeal  500 

Mills  V.  Carter  153 

Milner  v.  Leishman  270 

Milton  V.  Hunter  73 

Mims  V.  Mims  544 

Miner  v.  Austin  420 

Minor  v.  Mead  234 

Minot  V.  Taylor  265 

Mitchell  V.  Adams  156 

z:  Cox  15,  166,  174 


Mitchell  T.  Kirk 

V.  Lunt 

V.  Mitchell 

I'.  Mount 

V.  Warner 

V.  Word 
Mitchelson  v.  Piper 
Mix's  Appeal 
Mockbee  v.  Gardner 
Moffat  v.  Van  Millingen 
Moffatt  V.  Loughridge 
Mole  V.  Mole 
Mollan  V.  Griffith 
Molloy  V.  Elam 
Monell  V.  Monell 
Monroe  v.  Merchant 
Montague  v.  Dent 

V.  Smith 
Montalvan  v.  Clover 
Montgomery  v.  Armstrong 

V.  Dunning 

V.  Millikin 
Moody  V.  Moody 

v.  Shaw 

V.  Vandyke 
Moore  7'.  Alexander 

V.  Beauchamp 

V.  Burrows 

V.  Chapman 

z/.  Darrell 

V.  Dixon 

V.  Dortie 

V.  Felkel 

V.  Fields 

V.  Gordon 

V.  Hamilton 

V.  Holmes 

V.  King 

V.  Lesueur 

V.  Moore 

V.  Ridgeway 

V.  Ryers 

V.  Smith 

V.  State 

V.  Tandy 

V.  Townshend 

V.  Willett 
Mootrie  v.  Hunt 
Mordecai  v.  Boylan 
More  V.  Bennett 
Moreland  v.  Lawrence 
Morgan,  Goods  of 
Morgan  v.  Dodge  47, 138, 153, 154, 156 

V.  Hamlet  390 

V.  Locke  160,  415 

V.  Morgan  451 

V.  Rotch  520 

V.  Stevens  89 

V.  Thomas  195 

Morgan's  Estate  1 16 


Section 
186 

9,  191 

500 

428 

285 

16 

437 

526 

361 
4cx> 

358 
482 
490 
203 
359.  402 
91 
227 

375 
173 
257 
236 
407 
704 
256 
407 

308 
218 
142 
171 

428 
322 

15.  '73 
507 

329 
230,  540 

77 

508 

104,  448 

137 

417.425 

91,  92,  160,  409 

145 
402 

374 

403 

135 

42 

370 
119 

60,  63,  87 


Ivi 


TABLE    OF    CASES. 


Section 


Moring  v.  Flanders 

430 

Moirell  V.  Morrell 

H 

Morrice  v.  Bank  of  England 

437 

Morrill  ?'.  Foster 

236 

V.  Morrill 

186 

Morris  v.  Bienvenu 

133 

V.  Morris                      148, 

297. 

456 

V.  Swaney 

84 

Morrison  v.  Smith 

187 

Morrow  v.  Peyton 

542 

Morse  v.  Clayton 

408 

Mortimer  v.  Paull 

134 

Morton,  Goods  of 

60 

Morton  v.  Hatch 

178 

V.  Preston 

296 

V.  Smith                        327, 

334, 

Zl>^ 

Moseley  v.  Rendell 

410 

V.  Taylor 

255 

Moses  V.  Julian 

160 

V.  Moses      200,  210,  230, 

330 

358 

V.  Wooster 

378 

Masher  v.  Youst 

223 

Mosman  v.  Bander 

292 

Moss  V.  Rowland 

173 

Moule  V.  Garrett 

375 

Moultrie  v.  Hunt 

17. 

171 

Mountcastle  v.  Mills 

357 

Mountford  v.  Gibson          190, 

193 

195 

Mowrey  v.  Smith 

500 

Movvry  v.  Adams                254, 

261 

292 

Moye  V.  Albritton 

435 

V.  Kittrell 

63 

Moyle  V.  Moyle 

328 

Muirhead  v.  Muirhead 

157 

Muldoon  V.  Crawford 

428 

Mulford  V.  Mulford 

244 

405 

MuUanphy  v.  County  Court 

"5 

Mulligan  v.  Leonard 

89 

MuUins  V.  Yarhorough 

430 

Mumford  v.  Hall 

142 

Munden  v.  Bailey 

308 

542 

Mundorff  v.  Wangler 

146 

Munroe  v.  Flolmes             128, 

260 

531 

V.  People 

152 

Munsey  v.  Webster 

"3 

"5 

Munteith  v.  Rahn 

346,  362 

Muntz  V.  Brown 

325 

Murdock  v.  Ratcliff 

223 

Murphee  v.  Singleton 

488 

Murphy  v.  Carter 

407 

V.  Creighton 

24,93 

V.  Menard 

128 

V.  Murphy 

127 

V.  Vaughan 

430 

Murphy's  Estate 

116 

Murray,  Estate  of 

430 

Murray  v.  Blatchford 

404 

V.  E.  1.  Co. 

293 

V.  Oliver 

155 

Murrell  v.  Cox 

400 

Section 
Musick  V.  Beebe  526 

Musser  v.  Oliver  508 

Musson  V.  May  427 

Mutual  Benefit  Life  Ins.  Co.  v.  Tis- 

dale  160 

Myer  v.  Cole  397 

Myers  v.  Daviess  36,  37 

V.  Vanderbilt  74 


N. 


Nabb  V.  Nixon  236 

Nancy  v.  Snell  488 

Napier,  Goods  of  153 

Napier  v.  Wightman  356 

Nash  V.  Hunt  81 

Nason  v.  Smalley  403 

Nass  V.  Van  Swearingen  191 

Nation  v.  Tozer  401 

National  Bank  v.  Stanton    148,  160,  409 

Navigation  Co.  v.  Green  43 

Nayler  v.  Blount  519 

Naylor  v.  Moffatt        160,  164,  165,  173 

V.  Moody  173 

Neal  V.  Baker  190 

V.  Charlton             *  128 

V.  Knox  R.  Co.  218 

V.  Lamar  263 

V.  Patten  268 

Neale  v.  Hagthorp  239,  240 

Nease  v.  Capehart  190 

Needham  v.  Gillett  120 

Neeves  v.  Burrage  264 

NefPs  Appeal  308,  310,  316 

Neighbors  v.  Hamlin  155 

Neil  V.  Cunningham  390 

Neilley  v.  Neilley  438 

Nelson  v.  Boynton  48 

V.  Carrington  402 

V.  Cornwell  386,  387 

V.  Gojree  496 

V.  Hall  335 

V.  Jaques  522 

V.  Murfee  504 

V.  Russell  428,  439 

V.  Serle  255 

V.  Smith  450,  451 

V.  Whitfield  84 

V.  Wyan  500 

Nesmith,  Re  200,  237 

Nesmith  v.  Dinsmore  500 

Nettles  V.  McCown  331 

Nettleton  v.  Dinehart         279,  282,  373 

Newbold,  Goods  of  99 

Newcomb  v.  Goss  435,  438 

V.  Williams  37,  154.  485 

Newcombe  v.  Beloe  1 1 5 

New  England  Bank  v.  Stockholders  380 

New  England  Trust  Co.  v.  Eaton        13 


TAP.LE    OF    CASES. 


Ivii 


Section 

New  Englnnd  Mutual  Life  Ins.  Co. 

V.  Woodsworth  25,  228 

New'hall  v.  Turney  408 

Newman,  Succession  of  456 

Newman  v.  Jenkins  160 

New  Orleans  Canal  Co.  f.  Grayson  144 

Newsom  t'.  Jackson  280 

V.  Newsom  413 

Newsum  v.  Newsum  244 

Newton  v.  Cocke  47 

V.  Metropolitan  R.  194 

V.  Newton  406 

V.  I'oole  331 

V.  Seaman's  Friend  Society  62 

Nicholas  v.  Jones  256 

Nicholls  V.  Judson  469 

V.  Nicholls  63 

Nichols,  Ke  525 

Nicholson  v.  Elton  370 

Nickerson  v.  ]5uck  74 

Nicolay  v.  Fritzchie  410 

Nicull  V.  Scott  407 

Nield  V.  Smith  368 

Nimmo  v.  Commonwealth  542 

Nisbett  V.  Murray  462 

Nixon  V.  Armstrong  76 

Noddings,  Goods  of  44 

Noel,  Goods  of  139 

Noonan  v.  Bradley  179 

Norbury  f.  Norbury  323 

Norcott  V.  Gordon  490 

Norfleet  v.  Riddick  186 

Norman  v.  Baldry  476 

V.  Strains  388 

Normand  v.  Grognard  15, 141, 166, 174 

Norris  v.  Fristoe  147 

V.  Thomjjson  461 

North  7'.  Walker  418 

North  Carolina  University  v.  Hughes 

409 

North's  Estate,  Ke  498 

Northampton  v.  Smith  151 

Northcut  V.  Wilkins  389 

Northey  v.  Northey  488 

Norton  v.  Frecker  389 

V.  Palmer  173,  181 

V.  Sewall  282 

Norwood  V.  Harness  322 

Nowler  v.  Coit  164 

Noyes  v.  Barber  67,  70 

V.  Phillips  387 

Nugent  7'.  Giffard  239,  339 

Nuinan's  Estate  1 1 6 

Nunn  V.  Owens  36,  488 

Nusz  V.  Grove  99,  104 

Nutting  V.  {}oodridge  282 

Nyce's  Estate  335 

Nye  V.  Bartlett  459 


Section 

Oates  V.  Lilly  258,  390 

O'Brien,  Ke  104 

( )'Brien's  Estate  99 

O'Byrne,  Goods  of  139 
Oceanic  Steam  Nav.  Co.  v.  Suthcr- 

berry  353 

O'Dee  7'.  McCrate  270 

Odell  7\  Odell  465 

O'Dcll  V.  Rogers  70 

( )diorne's  .\p|)eal  99 

O'Donnell  7'.  Hermann  420 

O'Dwyer  7'.  Cieare  59 

O'Gara  v.  Eisenlohr  99 

Ogilvie  V.  Ogilvie  525,  538 

Oglesljy  V.  tiilmore  289,  292 

V.  Howard  308 

Okeson's  Appeal  522 

Oldham  v.  Collins  146,  408 

Oliphant,  Goods  of  37 

Oliphant,  In  re  17 

Oliver  v.  V^ance  501 

Olmsten  v.  Clark  195 

OKvine's  Appeal  413 

O'Xeal  7'.  Tisdale  141 

O'Xeall  V.  Abney  410 

O'Neill  V.  O'Donnell  544 

Opinion  of  Justices  13 

Oram's  Estate  320 

Orange  County  v.  Kidder  442 

Orcutt  V.  Orms  355,  356 

Ord  V.  Fenwick  292 

Ordinary  v.  Cooley  142 

V.  Smith  140 

Ordronaux  v.  Helie  174 

O'Reily  v.  Hendricks  186 
Orr  V.  Kaines                       229,  384,  491 

V.  Newton  46 

Osborn  v.  Cook  '  75,  78 

Osgood  V.  Breed  500 

Ossipee  v.  Gafney  309 

Ostendorf,  Re  115 

Oughton  V.  Seppings  194 

Outlaw  V.  Farmer  186,  195 

Overiield  v.  Bullitt  354 

Overman  7'.  Grier  438 

Owen  7'.  Curzon  409 

V.  Miller  24 

V.  Owen  42 

V.  State  277 

Owens  V.  Bloomer  422 

V.  CuUinson  431,  433 

V.  Cowan  160,  407 

Owings  7'.  Bates  106 

Oxenham  v.  Clapp  187,  436 


Pace  V.  Oppenheim 
Pacheco,  Estate  of 


93,  120 
»53 


Iviii 


TABLE    OF    CASES. 


Section 

Section 

Pack  V.  Bathust 

222 

Pease  v.  Allis 

76 

Packer  v.  Willson 

403 

V.  Walker 

200 

Paftc'.  Kinney 

330,  541 

Peate  v.  Crane 

328 

Page,  y\V 

84 

Peay  v.  Fleming 

356 

V.  Patton 

439 

Peck  V.  Bottsford 

401 

V.  Tucker 

269 

V.  Cary 

79 

Paice  V.  Archbishop  of  Canterbury  421 

V.  Ingersoll 

216 

Paine  v.  Paulk 

448 

V.  Parrot 

201 

V.  Ulmar 

279 

Peebles  v.  Overton 

292,  356 

Painter  v.  Henderson 

358 

V.  Watts 

122,  123 

Palmer  v.  Dent 

66 

Pelham  v.  Newton 

61 

t'.  Pahner             209, 

213, 

239,  510 

Pendleton  v.  Pendleton     loo, 

104,  129 

V.  Pollock 

408 

Pengree  v.  Goodrich 

266 

V.  Stevens 

214 

Penhallow  7j.  Penhallow 

457 

Parcher  v.  Bussell 

528 

V.  Dwight 

226 

Parham  -'.  Stith 

310 

Pennington  v.  Healey 

386 

Parker  v.  Brown 

70 

Penny  v.  Brice 

391 

V.  Cowell 

431 

V.  Penny 

519 

V.  Gilliam 

352 

People  V.  Curry 

147,  148 

V.  Kuckens 

503.  504 

V.  Gibbs 

370 

71.  Lewis 

421 

V.  Keyser 

400 

V.  Nims 

502 

V.  Lott 

428 

V.  Parker               70, 

160, 

170,  265 

V.  Miller 

146 

V.  Young 

427 

V.  Peck 

173 

Parks  V.  Parks 

500 

V.  Phelps 

417.435 

V.  Rucker 

236 

V.  Pleas 

388 

Parris  v.  Cobb 

250 

Peoples  V.  Peoples 

146 

Parry  v.  Ashley 

211 

Percival  v.  McVoy 

423 

Parsons  v.  Lyman 

175,   176 

Percival  v.  Gale 

247 

V.  Mayesden 

46,   195 

Perkins  v.  Ladd 

186 

V.  Spaulding 

94 

V.  Mathes 

461 

Partee  v.  Mathews 

428 

V.  Perkins 

211 

Partington  v.  Attorney  General  18,  174 

V.  Stone 

167 

Partridge  v.  Court 

293.  294 

V.  Sturdivant  (Miss.) 

226 

V.  Mitchell 

389 

Perkins's  Note 

478 

Paschall  v.  Davis 

408 

Perkinson  v.  Gilford 

372 

Pasquier,  Succession  of 

322 

Perrin  v.  Granger 

287 

Passmore  v.  Passmore 

63 

V.  Judge 

409 

Patchen't-.  Wilson 

289, 

290,  291 

Perrine  v.  Vreeland 

323 

Patten  v.  Tallman 

76,81 

Perry,  Goods  of 

196 

Patterson  v.  Cobb 

389 

Perry  v.  Campbell 

148 

V.  Craig 

258 

V.  Carmichael 

247 

V.  High 

120,  130 

V.  Craig 

305 

V.  Pagan 

164,  173 

V.  Cunningham 

398  a 

V.  Patterson 

292,  422 

V.  DeWolf 

50 

V.  Ransom 

77 

V.  Field 

419 

V.  Wadsworth 

274 

V.  Gill 

407 

Patton  V.  Overton 

173 

V.  Smout 

324 

Patton's  Appeal 

153.  250 

V.  St.  Joseph  R. 

Paul  V.  Willis 

92 

V.  Wilson 

370 

Pauley  v.  Pauley 

288 

V.  Wooten 

332 

Paull  V.  Simpson 

186 

Peter  v.  Beverly                   258, 

402,  405 

Payne  v.  Pusey 

389 

Peter's  Appeal 

387 

V.  Thompson 

140 

Peterkin  v.  Inloes 

91 

Peake  v.  Ledger 

403 

Peters  v.  Leader 

193 

Peale  v.  White 

J  37.  154 

V.  Peters 

160 

Pearce  v.  Cooke 

425 

V.  Public  Administrator  28 

,  1 1 2, 1 5 1 

V.  Savage 

400 

Petersen  v.  Chemical  Bank 

173 

Pearson  v.  Darrington 

406, 

541 >  542 

Pettingill  v.  Pettingill          137, 

155.  546 

V.  Pearson 

481 

Petit  V.  Petit 

509 

TABLE    OF    CASES. 


lix 


Section 

Phaelon  v.  Houseal  iS6 

Phelps  V.  McDonald  200 

V.  Phelps  453 

V.  Pond  217 

V.  Robbins  87 

Phillips,  Goods  of  134 

Phillips  V.  Brazeal  148 

V.  Chappel  50° 

V.  Everard  37^ 

V.  Phillips  403 

V.  Rogers  146 

V.  Stewart  I37 

Phipps  V.  Steward  5'8 

Piatt  V.  St.  Clair  408 

Pick  V.  Strong  160 
Pickering  v.  Pendexter               104,  109 

V.  Towers  3^ 

V.  Weiting  1 35 

Pico  V.  De  la  Guerra  419 

Pico's  Estate  108 

Picot  V.  Biddle  526 

Picquet  v.  Swan  1 64 

Pierce  v.  Irish  533 

Piercy,  Re  77 

Piaster  v.  Piester  43° 

Piggot's  Case  32 

Pike  V.  Thorp  438 

Pike's  Estate  33 

Pike  County  v.  Rowland  319 

Pilgrem  v.  Pilgrem  345 

Pinckard  v.  Pinckard  542 

V.  Woods  355 

Pinkham  v.  Grant  477 

Pinkney  v.  Singleton  256 

Pinkstaff  v.  People  148 

Pinney  v.  Barnes  413 
V.  McGregory  24,  25,  93,  120,  168 

V.  Pinney  194 

Piper  V.  Piper  45' 

Piper's  Estate  H^ 

Piquet,  Appellant  172 

Piquet,  Re  14' 

Piscoe  V.  Moore  3'° 

Pistole  V.  Street  106 

Pistorius's  Appeal  422 

Pitcher  v.  Armat  132 

V.  Tovey  37^ 
Pitkin  V.  Pitkin                           265,  325 

Pitt  V.  Pitt  200 

Pitte  V.  Shipley  43° 

Pitts  V.  Melser  58 
Place,  Re  413.  509 
Place  V.  Oldham                    28,  428,  438 

Plaisance's  Estate  iZ 
Piatt  V.  Piatt                                2CX),  210 

Pleasant's  Appeal  335 

Pleasants  v.  Dunkin  1 18 

Plimpton  V.  Fuller  5' 2 

Plowman  z'.  Henderson  114 

Plume  V.  Beale  85 


Seclion 

Plumer  v.  Maichant  427,  439 

V.  Plumer  227 

Plummer  t'.  Brandon  172 

Polhemus  v.  Middleton  544 

Pollard  V.  Pollard  49° 

V.  Sears  389 

Pollexfen  v.  Moore  44 

Pollock,  Re  200,  525 

Pollock  V.  Glassell  74-  77 

Ponce  V.  Wiley  387 
Pond  V.  Makepeace    168,  173,  176,  177 

Pool.  Succession  of  274,  346 

Poole  V.  Munday  332 

V.  Richardson  81 

Pope  V.  Boyd  288,  390 

V.  Curl  205 

Porter  v.  Askew  502 

V.  Hey  dock  174 

V.  Porter  500 

V.  Trail  32,  57 

Porter's  Estate  422 

Portevant  v.  Neylans  527 

Portis  V.  Cummings  533 

Post  V.  Caulk  118 

Potter  V.  Titcomb  19 
V.  Van  Vranken         279,  281,  371 

Potts  V.  Felton  77 

V.  Smith  408 

Poulson  V.  Frenchtown  Bank  531 

V.  Johnson  5 ' ' 

Powdrell  v.  Jones  427 

Powel  V.  Thompson  1 37 

Powell  V.  Demming  265 

V.  Evans  328,  384 
V.  Graham                   367,  368,  397 

V.  Myers  438 

V.  Rees  373.  374 

V.  Stratford  39 

V.  Stratton  173 

Powers  V.  Littlewood  502 

Powis,  Goods  of  '39 

Pratt  V.  Pratt  5°^ 

V.  .Swaine  '95 

Prescott  V.  Uurfee  27 

V.  Morse  43 

Preston  v.  Cutter  219,  220 
Price  V.  Dewhurst                 15,  165,  169 

V.  Morgan  37° 

V.  Morris  '73 

V.  Moulton  21)4 
V.  Nesbit                      340,  346,  4SS 

V.  Strange  498 

Prichard  v.  Thompson  4^4 

Pride  v.  Watson  45^ 

Priest  V.  Watkins  195 

Priestman  v.  Tindal  427 

Primrose  v.  Bromley  378 

Prince  v.  Nicholson  437 

Pringle  v.  McPherson  253,  297 

Prior  V.  Talbot  146,  247 


Ix 

TABLE    OF    CASES. 

Section 

Section 

Pritchett's  Hstate,  Re 

504 

Ray  V.  Hill 

75 

Probate  Court  v.  Kent 

434 

Raymond  v.  Fitch 

28s 

Probate  Judge  v.  Mather 

329 

Rayner  v.  Pearsall 

321 

Proctor  V.  'lerrill 

317 

Raynor  v.  Green 

46 

V.  Wanniaker 

"6,  153 

Rea  V.  Englesing 

107 

Propst  V.  Meadows 

420 

Read  v.  Truelove 

46 

Proud  V.  Turner 

498 

Reade  v.  Livingston 

220 

Pulilic  Administrator  v.  Burdell        344 

Reading  v.  Weir 

428 

V.  Hughes 

108 

Reagan  v.  Long 

190 

V.  Peters 

116 

Reaves  v.  Garrett 

542 

V.  Ward 

270 

Reavis,  Ex  parte 

456 

V.  Watts 

116 

Rebham  v.  Mueller 

56 

Puckett  V.  James 

507 

Record  v.  Howard 

160 

Pugh  V.  Russell 

428 

Rector  V.  Conway 

389 

Pugsley  V.  AiUin 

376,  395 

Reech  v.  Kennegal 

25s 

Pulliam  V.  Byrd 

346 

Reed,  Goods  of 

139 

V.  Winston 

356 

Reed  v.  Crocker 

322 

Pulteney  v.  Warren 

374 

V.  Gilbert 

236 

Punchard,  Goods  of 

37 

V.  Howe 

no 

Purdy  V.  Hoyt 

527 

Reed's  Estate 

506 

Purple  V.  Withed 

176,  179 

Reeve  v.  Crosby 

81 

Pursel  V.  Pursel 

542 

Reeve's  Trusts,  Re 

494 

Putnam  v.  Coliamore 

265,  473 

Reeves  v.  Steele 

146 

Pyke  V.  Searcy 

491 

Refeld  v.  Belette 

488 

Reformed  Presb.  Church  v. 

Nelson    70 

Rehard  v.  Long 

146 

Q- 

Reid,  Re 

20 

Reid  V.  Butt 

288 

Quain's  Appeal 

376 

V.  Porter 

453 

Queensberry  v.  Shebbeare 

295 

Reist  V.  Heilbrenner 

281 

Quin  V.  Moore 

283 

Reitzell  v.  Miller 

386,  387 

Quincy  v.  Rogers 

474 

Remnant  v.  Brembridge 

376 

Quinn  v.  Moss 

483 

Renfro  v.  White 

148 

Reno  V.  Tyson 

146 

Rex  V.  Netherseal 

58 

R. 

V.  Simpson 

33 

V.  St.  Dunstan 

227 

Radcliffe,  Re 

437 

V.  Stone 

194 

Radford  v.  Radford 

109 

Rexroad  v.  Wells 

265 

Radnall,  Goods  of 

116 

Reyburn  v.  Ruggles 

412 

Radovich's  Estate 

363  « 

Reynold  v.  Torrance 

164 

Railroad  v.  Harris 

173 

-J.  Hamilton 

401 

Raines  v.  Raines 

358 

V.  Kortwright 

165,  169 

Rainsford  v.  Taynton 

133 

V.  Reynolds 

77.  542 

Rambo  v.  Wyatt 

106,  128 

V.  Link 

154 

Ramsey  v.  Blalock 

361 

Reynolds  v.  McMullen 

19 

Rand  v.  Butler 

465 

Rhett  V.  Mason 

518,  522 

Randall  v.  Rich 

376 

Rhoad's  Appeal 

526 

V.  Shrader 

98 

Rhodes  v.  Rhodes 

85 

Randle  v.  Carter 

154 

V.  Vinson 

85 

Raphael  v.  Boehm 

384 

Rice,  Appellant 

■     378 

Rappelyea  v.  Russell 

398 

Rice  V.  Boston  Aid  Society 

468 

Ratcliffe  v.  Barnes 

69 

V.  Gordon 

352 

Rathbone's  Estate 

525 

Rich,  Re 

525 

Rattoon  V.  Overacker 

195 

Rich  V.  Gilkey 

84 

Rawlins  v.  Powel 

469 

Richards  v.  Uavies 

474 

Rawlinson  v.  Shaw 

51 

V.  Dutch 

174 

V.  Stone 

362 

V.  Mills 

106 

Rawstone  v.  Parr 

378 

V.  Pieice 

58 

Ray  V.  Doughty                  200 

317.409 

V.  Richards 

461 

TABLE    OF    CASES. 

1X1 

Section 

■ 

Section 

Richards  v.  Sweetland 

>54 

509 

Rocco  V.  Cicalla 

450 

Richardson,  Goods  of 

133 

Rocke  7'.  Hart 

538 

Richardson  v.  Morton 

420 

Rockham  v.  Wittkowski 

173 

V.  Jenkins 

427 

Rockwell  7'.  Saunders 

199 

V.  Knight 

333 

7'.  \oung 

187,  190 

V.  McLemore 

323 

509 

Rodeiigas  7'.  East  River 

Savings 

V.  Merrill 

452 

Bank 

92,  96 

V.  N.  Y.  Central  R. 

2S3 

Rodman  v.  Rodman 

226 

Richmond  v.  Delay 

504 

Rodwell  V.  Phillips 

226 

V.  White 

439 

Roe  7'.  Harrison 

353 

Rick  V.  Gilson 

404 

Rogers,  Ex  parte 

450 

Ricketts  v.  Lewis 

353 

Rogers  v.  Danvers 

426 

V.  Weaver 

285 

V.  Fort 

394 

Riddell  r.  Sutton 

369 

7'.  (iooch 

289 

Riddle  V.  Mill 

187 

V.  Hand 

541 

V.  Mandeville 

359 

V.  Hoberlein 

160 

Rider  v.  Wager 

470 

V.  King 

13.  520 

Ridoat  V.  Bristovv 

255 

V.  Paterson 

217 

Rigby,  Ex  parte 

400 

V.  Rogers 

434 

Riggs  7'.  Cragg 

478 

V.  Ross 

473 

Riley  v.  Albany  Savings  Bank 

252 

V.  State 

430 

V.  Kepler 

515 

V.  Traphagen 

543 

z>.  Norman 

526 

V.  TuUas 

3«7«.  324 

Rinehart  t'.  Rinehart          1 12, 

153 

403 

V.  Winton 

70 

Ringgold  V.  Stone 

538 

V.  Zook 

362 

Ripley  v.  Sampson     305,  318 

380 

430 

Rogerson,  Goods  of 

99 

Risdon,  Goods  of 

106 

Rolair  v.  Darby 

428 

Ritchie  v.  Rees 

231, 

232 

Rollins  V.  Rice 

4'3,  483 

Rittenhouse  t.  Anmerman 

293 

V.  Whipper 

'53 

V.  Levering 

541 

Rolhvagen  v.  RoUwagen 

74.  75 

Ritter's  Appeal 

389 

442 

Romig's  Appeal 

525 

Roach  V.  Jelks 

545 

Rooney,  Re 

422 

Ro  Bards  v.  Lamb 

135 

Roosevelt  v.  EUithorp 

507 

Robb's  Appeal 

216 

Root,  Re 

"3 

Robbins,  Matter  of 

230 

Root  V.  Geiger 

190,  193 

Robbins  v.  Wolcott 

346 

542 

Rose  V.  Bowler 

395 

Roberts  v.  Calvin 

142 

V.  O'Brien 

506 

V.  Nelson 

286 

V.  Quick 

63 

V.  Phillips 

77.78 

V.  Winn 

142 

V.  Reynolds 

77 

Rosenthal  v.  McGee 

420 

V.  Roberts 

547 

V.  Remick 

27,  168 

V.  Welch 

75 

Ross,  Goods  of 

139 

Roberts's  Will 

171 

Ross  V.  Barclay 

4>3 

Robertson  !•.  McGloch 

50 

V.  Cowden 

310 

Robie's  Instate 

109 

V.  Ewer 

63 

Robinett's  Appeal               325, 

331 

538 

7'.  Harden 

252,  397 

Robinson  v.  Adams 

73,81 

7'.  Minis 

144 

V.  Bell 

187 

V.  Newman 

190 

V.  Chairman 

508 

Ross's  Trusts 

498 

V.  Crandall 

173 

Rosser,  Goods  of 

46 

V.  Davidson 

367 

Rossiter  v.  Cossit 

430 

V.  Epping 

200 

Roumfort  v.  McAlarney 

441 

V.  Hodge 

390^ 

Rowan  v.  Kirkpatrick 

408 

V.  Lane 

362 

Rowley  v.  Fair 

244 

V.  Lowater 

5" 

V.  Adams 

375 

V.  Pett 

545 

Roxburgh  v.  Lambert 

"5 

V.  Robinson 

328 

Roy  V.  Segrist 

70 

V.  Steele 

523 

V.  Vilas 

345 

V.  Tickell 

485 

Roys  V.  Roys 

271 

Robinson's  Executor's  Case 

427 

Rubottom  V.  Morrow 

315,407,413 

Ixii 


TABLE    OF    CASES. 


Section 


Rucker  v.  Waddington 

442 

Ruddy,  Goods  of 

133 

Ruff  r\  Smith 

412 

Rug^'  V.  ku<,'g 

78,81 

Rugjjles  V.  bherman 

209 

RuutFs  Appeal 

63 

Rusling  7).  Rusling 

396,  469 

Russell  V.  Erwin 

1 1 8,  409 

V.  Hartt 

57 

V.  Hoar 

129 

V.  Hubbard 

418 

V.  Madden 

16 

V.  McDougall 

148 

Ryan  v.  Ryan 

99 

V.  Texas  Pacific  R, 

56 

Ryder,  Goods  of 

41 

Ryno  V.  Ryno 

91 

Saam  v.  Saam 
Sabin  v.  Gilman 
Sacia  v.  Berthoud 
Sadler  v.  Hobbs 
Saeger  v.  Wilson 
Saffran  v.  Kennedy 
Saffold  V.  Banks 
Sain  V.  Bailey 
Salmon  v.  Clagett 

V.  Hays 
Salter  v.  Cain 
Salyer  v.  State 
Sample  v.  Liscomb 
Sampson  v.  Sampson 

V.  Shaw 
Samuel  v.  Thomas 
Sanborn  v.  Goodhue 
Sanders  zk  Barrett 

V.  Blain 

V.  Edwards 

V.  Jones 

V.  Loy 
Sanderson  v.  Sanderson 

Sand  ford  v.  Wicks 
Sanford  v.  Gilman 

V.  McCreedy 

V.  Thorp 
San  Roman  v.  Watson 
Sarah  v.  Gardner 
Sargent,  Re 
Sargent  v.  Fox 

V.  Sargent 
Sarkie's  Appeal 
Sarle  v.  Court  of  Probate 
Sasscer  v.  Walker 
Saunders  v.  Gatlin 

V.  Saunders 
Saunderson  v.  Stearns 


190 
173 
352 

335 
508 
203,  408 
258 
203 

352 
126 
409 
140 
263 
418 

379 
398,  422 

273 

15 

404 

147 
173 

308,  439,  520 
542 
390 
146 

293 

527.  537»  542 

128 

275 
109,  113 

112 

324.  479 

32 

138,  342 

200 

409 

403 
241 


Savage  v.  Gould 
Savory,  Re 
Sawyer  v.  Baldwin 
V.  Concord 
V.  Mercer 
V.  Sawyer 
Saxton  V.  Chamberlain 
Sayers's  Appeal 
Sayre  v.  Sayre 
Scaife  v.  'i'homson 
Scarborough  v.  Watkins 
Scarce  v.  Page 
Scarth  v.  Bishop  of  London 
Schaffner  v.  Grutzmacher 
Schenk  v.  Schenk 
Schenid  v.  Dana 
Schlecht's  Estate 
Schmiltler  v.  Simon 
Scholeheld  v.  Eichelberger 
Scholey  v.  Walton 
Schoollield  v.  Rudd 
Schouler,  Petitioner 
Schreiber  v.  Sharpless 
Schultz  V.  Dambmann 

71.  Pulver 
Schwartz's  Estate 
Schwertfegen,  Goods  of 
Scituate  Court  v.  Angell 
Scotield  V.  Churchill 
Scott  V.  Atchison 
V.  Becher 

V.  Crews  128,  152, 

V.  Fink 
V.  Fox 
V.  Governor 
V.  Hancock 
V.  Kennedy 
V.  Key 
V.  Monell 
V.  Searles 
V.  Taylor 
V.  Tyler 
V.  West 
Scott's  Case 
Scoville  V.  Post 
Scranton  v.  Demere 

V.  Farmers'  Bank 
Scroggs  V.  Tutt 
Scruby  v.  Fordham 
Scruggs  V.  Driver 
Scurtield  v.  Howes 
Scurrah  v.  Scurrah 
Search  v.  Search 
Searle  v.  Court  of  Probate 

V.  Lane 
Sears  v.  Carrier 
V.  Dillingham 
V.  Mack 
V.  Wilson 
Seawell  v.  Buckley 


Section 

537 
74 
473 
279 
436 
448,  449 
538 
214 

527 

82 

308 

116 

25 

456 

522,  532 

200 

'55 

398  rt 

326 

389,  401 

205 

463 

283,  370 

•7 

175.308 

21 3 

"5.135 

478 

146 

3'o 

33 

.  409.  538 

82 

43.  128 

230 

389 

523 

395 

543 

352.  362 

350 

339.  349 

247 

247 

184 

120 

362 

420 

85 

402 

402 

231 

»3 

135 

426,  436 

588,  296 

47.  '57 

505 

104 

526 


TABLE    OF    CASES. 


IXIll 


Section 

Secar  v.  Atkinson  395 

Segars  t.  Segars  369 

Seip  :'.  Drach  397,  398 

Selleck  v.  Kusco  194 

Sellero's  Appeal  528 

Seller's  Kstate  236 

Sellers  7:  Licht  190 

V.  Sellers  265,  522 

Selmaii  v.  iMiliiken  506 

Selover  v.  Coe  419,  445 

Seman  7-.  Whitehead  544 

Semmes  v.  Magruder  389 

Senat  v.  Findley  418 

Senior  v.  Ackerman  137,  211 

Sever  v.  Russell  526,  530 

Sevier  v.  Succession  of  Gordon  531 

Sevvell  V.  Slingluff  83,  539,  542 

Seymour  v.  Seymour  520,  530 

Shackelford  v.  Runyan  408,  409 

Shaeffer  v.  Shaefler  421 

Shafee  v.  (Irimes  282 

Shafer  v.  Grimes  282,  373 

Shaffer's  Appeal  526 

Shakespeare   v.  Fidelity  Insurance 

Co.  24,  205 

V.  Markham  432 

Shallcross  -/.  Wright  431 

Shaltz  V.  Dambmann  17 

Shaker's  Appeal  143 

Shannon  v.  Shannon  20 

Sharland  v.  Mildon  186 

Sharp  V.  Dye  118 

V.  Farmer  120 

V.  Lush  519 

Sharpe  v.  Rockwood  324 

V.  Scarborough  221 

Sharpe's  Appeal  153 

Shaw  V.  Beiry  400 

V.  Cable  310 

V.  Hallihan  190 

V.  Spencer  349,  350 

Shawhan  v.  Loffer  408 

Shee  V.  French  221 

Sheehan  v.  Kennelly  403 

Sheet's  Estate  485 

Sheetz  z>.  Kirtley  526 

Sheen  v.  Rickie  227 

Sheffield  v.  Lord  Coventry  487 

Shegogg  7'.  Perkins  15,  181 

Sheibley  z\  Mill  362 

Shelden  7'.  Warner  430 

Sheldon  v.  Bliss  233,  453 

V.  Rice  27,  164,  173,  179,  212, 

330,  358 

V.  Woodbridge  358 

z/.  Wright  "3.536 

Shelley's  Case  421 

Shelton  v.  Homer  405 

Shephard  v.  Rhodes  160,  168 

Shepherd  v.  Mouls  335,  338 


Section 

Sheridan  v.  Houghton  84 

Sherman  v.  Chase  530 

V.  Dodge  509 

V.  Jerome  488 

V.  Page  182,  183,  234 

V.  Sherman  204,  448 

V.  Western  R.  391 

«'■  Willett  346,  354 

Sherwood  v.  Hill  146 

7'.  Smith  500 

Shewen  v.  Vandenhorst  389 

Shewmake  7'.  Johnson  265 

Shields  v.  Odell  208 

V.  Shields  137 

Shillaber  v.  Wyman  195 

Shindel's  Appeal  526 

Shipbrook  v.  Hinchenbrook  402 

Shiiiley,  Ex  parte  322 

Shipman  v.  Butterfield  1 18 

Shirley  v.  Healds  194,  195 

Shirreff  v.  Hastings  427 

Shirt  7'.  Westby  481,  490 

Shoenberger  v.  Savings  Institution   194 

Shofner  n.  Shofner  226 

Shomo's  Appeal  102 

Shreve  v.  Joyce  3S9,  401 

Shriver  v.  State  504  a 

Shropshire  7'.  Withers  113 

Shuler  v.  Millsaps  280,  372 

Shumway  v.  Cooper  98 

V.  Holbrook  56,  59,  94 

.Shurtleff  7'.  Francis  368 

Shuttleworth,  Goods  of  85 

Siboni  v.  Kirkman  253,  367 

Sibthorp,  Goods  of  61,  62 

Sidle  V.  .\nderson  255 

Sieckman  v.  Allen  247,  258 

.Sigourney  v.  Sibley  13,  114 

Siler  V.  Gray  367 

Sill  V.  McKnight  33 

Simmonds  v.  Bolland  476 

Simmons  v.  Boyd  543 

V.  Simmons  295 

Simms  v.  Richardson  430 

Simonton  v.  McLane  186 

Simpson  v.  Chapman  325 

V.  Cook  37,  160 

V.  Gutteridge  400 

Simpson's  Appeal  508 

Sims  V.  Boy n ton  91,  291 

V.  Lively  146 

V.  Stillwell  256 

Singleton  v.  Moore  508 

7).  Singleton  226 

Sisters  of  Charily  v.  Kelly  74 

Sitzman  v.  Pacquette  157 

Sivley  v.  Summers  1 31 

Skiffiiigton  7'.  Budd  410 

Skelheimer  v.  Chapman  291 

Skinner  v.  Wynne  498 


Ixiv 


TABLE    OF    CASES. 


Section 

Section 

Skrine  v.  Simmons 

355. 

357 

Smith  V.  Porter 

186 

Slack  V.  Kmery 

430 

V.  Sherman   1 15,  279,  280 

282,  429 

V.  Slack 

453 

V.  Smith                         278,  428,  500 

Slade  V.  Slade 

538 

V.  Stockliridge 

160 

"'.  ^^ashburn           91,  95, 

134. 

'35 

V.  Tiftany 

173 

Slagle  V.  Entrekin 

409 

V.  Union  Bank 

«5 

Slaney  v.  Watney 

44 

V.  Van  Kwren 

527 

Slanning  v.  Style 

33. 

137 

V.  Wells 

5H 

Slater  v.  May 

m 

V.  Whiting 

401 

Slaughter  v.  Froman 

410 

V.  Wilmington  Coal  Co. 

253.  254 

Slauter  v.  Chenowith 

173 

V.  Young 

104,  106 

Slaymaker  v.  Farmers'  Bank' 

409 

Smithers  v.    Hooper 

412,  538 

Sleake  v.  Newman 

376 

Smyley  v.  Reese 

544 

Sleech  v.  Thorington 

480, 

490 

Smyth  V.  Burns 

335 

Sleigh  man  v.  Marshall 

200 

V.  Taylor 

347 

Sleighter  v.  Harrington 

255 

Snead  v.  Coleman 

258,  398 

Sloan  V.  Johnson 

409 

Sneesby  v.  Thome 

400 

V.  Sloan 

173 

Snelling's  Case 

7 

Slocomb  V.  Slocomb 

20 

Sniiler  v.  Croy 

291 

Slocum  V.  Sanford 

200 

Sno'dgrass  v.  Cabiness 

199,  239 

Small  V.  Commonwealth     I40 

142 

146 

V.  Snodgrass 

526 

Smartt  v.  Watterhouse 

352 

362 

Snow  V.  Snow 

288 

Smethurst  v.  Tomlin 

Z2, 

Soldini  v.  Hyams 

141 

Smiley  v.  Allen 

244 

Solomon  v.  Wixon 

46 

Smilie  v.  Siler 

522 

Somerset,  Goods  of 

135 

Smith,  Goods  of 

43 

Somerville  v.  Somerville 

22 

Smith  V.  AttersoU 

62 

Son  V.  Miner 

400 

V.  Ayer                         349 

35° 

352 

Sorin  v.  dinger 

543 

V.  Black 

522 

Sotheran  v.  Dening 

82 

V.  Blackwell 

428 

Souter,  Ke 

528,  533 

V.  Bland 

216 

South  all  V.  Jones 

(>3 

V.  Carrere 

408 

V.  Taylor 

308,  356 

V.  Chapman 

366 

Southwestern  R.  v.  Paulk 

173 

V.  Chapman 

App. 

Soverhill  v.  Suydam 

208 

V.  Davis 

533 

Soward  v.  Sovvard 

74 

V.  Day 

476 

Sowers  v.  Cyrenias 

464 

V.  Downes 

433 

Soye  V   McCallister 

340 

V.  Downey 

439 

Sparhawk  v.  Allen 

216 

V.  Dutton 

526 

V.  Buell 

402 

V.  Dunwoody 

242 

Sparks  V.  White 

173 

V.  Ellington 

428 

Spa  aiding  v.  Cook 

189 

V.  Evans 

74 

Speelman  v.  Culbertson 

362 

V.  Everett 

400 

404 

Speidel's  Appeal 

453 

V.  Field 

481 

Spencer  v.  Gaboon 

142 

V.  First  Presby.  Church 

217 

V.  Rutledge 

409 

V.  Gillam 

430 

Sperry,  Estate  of 

221,  428 

V.  Guild 

164 

Spinning  v.  Spinning 

457 

V.  Haskins 

260 

Spode  V.  Smith 

476 

V.  Hurd 

308 

Sponsler's  Appeal 

468 

V.  Hutchinson 

509 

Spraddling  v.  Pippin 

167 

V.  Lambert 

527 

Springer's  Appeal 

208,  481 

V.  Mayo 

431 

Springs  v.  Irwin 

122 

V.  McLaughlin 

422, 

431 

Springsteen  v.  Samson 

422 

V.  Moore 

402 

Spruil  V.  Spruil 

488 

V.  Morgan 

427 

Squib  V.  Wyn 

130 

V.  Munroe 

109 

"3 

Squier  v.  Mayer 

227 

V.  Pattie 

249 

V.  Squier 

545 

V.  Phillips 

137 

St.  Jurgo  V.  Dunscomb 

127 

V.  Pistole 

135 

St.  Louis  Hospital  v.  Williams 

74 

V.  Pollard 

346 

St.  Vrain's  Estate 

500 

TABLE    OF    CASES. 


Ixv 


Stacey  v.  Thrashev 
Stafford  V.  Buckley 
Stag  V.  Punter 
Stahlschmidt  v.  Lett 
Staiiiton,  Goods  of 
Stair  V.  York  Nat.  Bank 
Stairley  -'.  Babe 
Stallsworth  v.  Stallsworth 
Stallworth  v.  Farnham 
Stamper  v.  Garnett 
Stanljrough  v.  Evans 
StandiferT'.  Hubbard 
Stanford  v.  Stanford 
Stanley  v.  Bernes 

V.  Stanley 

V.  Whitney 
Staple's  Appeal 
Staples  V.  Staples 
Stapleton  v.  Truelock 
Stark  V.  Hun  ton 

V.  Parker 
State  V.  Adams 

V.  Baskin 

V.  Berning 

V.  Castleberry 

V.  Creusbauer 

V.  Crassley 

V.  Farmer 

V.  Fields 

V.  Hallett 

V.  Hogan 

V.  Hyman 

V.  Johnson  152, 

V.  King 

V.  McAleer 

V.  Mitchell 

V.  Murray 

V.  Parrish 

V.  Piatt 

V.  Porter 

V.  Price 

V.  Probate  Court 

V.  Purdy 

V.  Reinhardt 

V.  Rogers 

V.  Stroop 

V.  Watson 

V.  Wilson 
State  Bank  v.  Williams 
Staunton  v.  Parker 
Stayner,  Re 
Stearn  v.  Mills 
Stearns  v.  Brown 

V.  Burnhani 

V.  Fiske 

V.  Stearns 

V.  Wright 
Stebbings  v.  Lathrop 

Stebbins  v.  Palmer 


Section 

Section 

180 

Stebbins  v.  Smith 

138 

200 

Stedman  v.  Fiedler 

325 

421 

Steel  XI.  Steel 

214 

3S9.  439 

Steele  v.  Atkinson 

409 

no 

V.  Morrison 

523 

408,  409,  410 

V.  Price 

84.85 

IZ 

V.  Steele 

257 

241,  247 

Steen  v.  Steen 

409 

520 

Steger  v.  Friz /.ell 

200 

533 

Stephens  v.  Harris 

431 

361 

V.  Hotham 

376 

418 

V.  Milnor 

335 

420 

71.  Taylor 

145 

17,  171 

Stephens's  Appeal 

544 

495 

Stephenson,  Goods  of 

98 

44 

Stephenson  v.  Stephenson 

104,  526 

44 

Sterling-Maxwell  v.  Cartwright         169 

358 

Stern's  Appeal 

325 

42 

Sterrett's  Appeal 

525 

316,  390 

Stetson  V.  Bass 

530 

57 

Stevens  v.  Bagwell 

98 

481 

V.  Gage 

3'5 

'37 

V.  Gaylord           115,  163, 

1 68,  208 

305 

V.  Goodell 

409,  410 

150 

V.  Stevens 

147 

143 

Stevenson  v.  Phillips 

524 

468,  478,  481 

Stewart,  Goods  of 

132 

141 

Stewart,  In  re 

32,  106 

148 

Stewart  v.  Chadwick 

200 

23 

V.  Conner 

4CX3 

307 

V.  Denton 

381 

406 

V.  Harriman 

76 

329,  428,  438 

V.  Richey 

290,  292 

415 

V.  Stewart            295,  355, 

356,  522 

508 

Stickney  v.  Sewell 

323. 402 

150 

Stiles,  Matter  of 

77 

409 

Slillman  v.  Young 

247 

522 

Stinson  v.  Stinson 

216 

545 

Stockton  V.  Wilson 

189,  194 

416 

Stockwell  V.  Ritherdon 

82 

141,  142 

Stokely's  Estate 

175,  180 

5H 

Stoker  v.  Kendall 

'53 

140 

Stokes  V.  Porter 

184 

104 

V.  Stickney 

370 

36,41 

Stone  V.  Gerrish 

368 

148 

V.  Huxford 

65 

37 

V.  StilwcU 

537 

526 

V.  Union  Savings  Bank 

402 

533 

Stong  V.  Wilkson 

146 

48 

Storer  v.  Blake 

200 

526 

V.  Prestage 

478 

230,  236 

Storms  V.  Quackenbush 

403 

525.  538 

Stose  V.  People 

408 

164.  173 

Stoudenmeier  v.  Williamson 

290 

104 

Stow's  Estate 

3'8 

509,  526 

Stratton  v.  Linton 

102 

160 

Strawn  v.  Strawn 

448,449 

46,  54,  112, 

Stretch  v.  McCampbell 

335 

122,  153 

Strever  v.  Fcltman 

403 

115 

Stromo  V.  Bissel 

390 

Ixvi 


TABLE    OF    CASES. 


Section 

Stronach  7>.  Stroi\ach  360 

Strong  V.  I'erkins  58 

V.  Strong  526 

7'.  Wilkinson  538 

Stronghill  :■.  Anstey  347 

Strother  v.  Hull  407 

Stulibleriekl  v.  McRaven  160,  408 

Studehacker  M.  Co.i'.  Montgomery  258 

Studholme  v.  Hodgson  473 

Studley  v.  Willis  39,  398 

Stukes  V.  Collins  356 

Sturdivant  7'.  Birchett  77 

Sturtevant  v.  Tallman  526,  530 

Stuyvesant  v.  Hall  400 

Styles  V.  Guy  335,  402 

Suarez  v.  Mayor  24 

Suckley,  Matter  of  502 

Sugden  a.  Crossland  537 

V.  Lord  St.  Leonards  84,  85 

Svvisse  V.  Lovvther  468 

Sullivan  v.  Fosdick  24,  407 

V.  Holker  410 

V.  Horner  421 

V.  Sullivan  24,  76 

V.  Winthrop  481 

Summers  v.  Reynolds  317 

Sumner  v.  Williams  361,  397 

V.  Powell  378 

Sumrall  v.  Sumrall  526 

Sutherland,  Goods  of  139 

Sutherland  v.  Harrison  430,  512 

Sutter  V.  Ling  218 

Sutton  V.  Sadler  73 

Swan  V.  Swan  100 

Swearingen  v.  Pendleton  177 

Sweet  V.  Boardman  75 

Sweezey  v.  Willis  103,  214,  501 

Sweigart  v.  Berk  200 

Swenarton  v.  Hancock  73 

Swenson  v.  Walker  420 

Swift  V.  Miles  435 

V.  Wiley  75 

Swilley  v.  Lyon  239 

Swinburn  v.  Ainslee  227 

Swindell  v.  Bulkeley  366 

Syme  v.  Badger  439 

V.  Broughton  407 


Tabor  v.  Tabor  214 

Taft  V.  Hosmer  73 

Taft  V.  Stevens  214,  215 

Taggard  v.  Piper  478 

Talbert,  Succession  of  112 

Talbot  V.  Radnor  489 

Taliaferro  v.  Robb  396 

Talmage  v.  Chapel  173,  179 

Taney's  Estate  75 


Tanner  v.  Mills 
V.  Skinner 
Tapley  v.  Kent 
Tappan  v.  Tapjian 
Tappen  t.  Davidson 
Tari)ell  v.  Jewctt 
Tarbox  v.  Fisher 


Section 
149 

525 

63 

141,  289,  527 

78 

208 

454 


Tarn  v.  Commercial  Bank  194 

Tasker  v.  Shepherd  367 

Tate  V.  Norton  213,  420 

Tatten  v.  Tallman  81 

Tattnall  t.  Hankey  60 

Taylor,  Goods  of  66 

Taylor  v.  Allen  32 

V.  Barron  1 32,  179 

V.  Brooks  128 

V.  Clarke  479 

V.  Creswell  79 

V.  D'Egville  63 

V.  Delancey  104 

V.  Haygarth  494,  503 

V.  Hosick  160 

V.  Moore  189,  193,  195 

V.  Mygatt  256 

V.  Perry  441 

V.  Pettus  16,  211 

V.  Phillips              ^  120 

V.  Taylor  456,  462,  508 

V.  Shore  124 

V.  Tibbatts  50 

V.  Wright  544 

Taynton  v.  Hannay  133 

Teague  v.  Corbitt  390 

V.  Dendy  410 

Tebbs  71.  Carpenter  308,  384 

Telford  v.  Barry  321 

Tell  Furniture  Co.  v.  Stiles  345 

Tempest  v.  Tempest  "](> 

Temples  v.  Cain  27,  91 

Teneick  v.  Flagg  218 

Ten  Eyck  v.  Vanderpool  256 

Terhune  v.  Bray  385 

Terry  v.  Ferguson  214 

Teschemacher  v.  Thompson  154 

Thacher  v.  Dunham  544 

Thayer  v.  Clark  420 

V.  Hollis  389 

z-.  Homer  33,47,154,156 

Thellusson  v.  W'oodford  465,  474 

Thomas,  Petition  of  217 

Thomas  7A  Adams  119 

V.  Knighton  153 

V.  Smith  204 

V.  Stanley  408 

V.  W^hite  359 

V.  Wood  43 

Thompson  7y.  Bondurant  118 

V.  Brown  325,  390 

V.  Buckner  409 

V.  Davitte  77 


TABLE    OF    CASES.    » 

Ixvn 

Section 

Section 

Thompson  r-.  Dixon 

50 

Townsend  v.  RadclifTe 

496 

V.  Holt 

>3 

V.  Tallant 

247 

V.  Johnson 

63 

V.  Townsend 

70,94 

V.  Tracy 

'35.  150. 

151 

Townshend  ?'.  Windham 

222 

V.  White 

205, 

3S5 

Tracy  7/.  Card 

408 

V.  Wilson 

172 

V.  Suydam 

387 

V.  Winnebago  Co. 

200 

Trattle  v.  King 

267 

V.  Vounghlood 

487 

Traver  7\  Schell 

467 

Thompson's  Estate 

32,  107 

124 

Trawick  v.  Trawick 

526 

Thomson  7'.  Thomson 

230 

Tread  well  v.  Cordis 

405.  473 

Thorn  v.  Tyler 

271 

Treat  v.  Fortune 

439 

Thorncraft  v.  Lashmar 

63 

Trecothick  v.  Austin 

164,  173,  175 

Thorndike  v.  Boston 

21 

176,  205 

Thome  v.  Walk  ins 

16 

Trevelyan  v.  Trevelyan 

85 

Thornton,  Goods  of 

50 

Treves  v.  Townshend 

482 

Thornton  7'.  Burch 

226 

Triggs  V.  Daniel 

413.  543 

V.  Glover 

506 

Trimble  v.  James 

537 

V.  Mehring 

223 

V.  Marshall 

389 

V.  Moore 

13 

114 

Trimmer  v.  Jackson 

75 

V.  Smiley 

290 

Trimnell,  Goods  of 

77 

v.  Winston 

44.  46,  50 

Triplett  v.  Wells 

i'3 

Thorpe  v.  Jackson 

378 

Trotter  v.  Trotter 

17.  324 

Thumb  V.  Gresham 

91 

V.  White 

173 

Thurston  v.  Doane 

200 

Troup  V.  Rice 

538 

Tichborne  v.  Tichborne 

134 

Trow  V.  Shannon 

50 

Ticknor  7'.  Harris 

390 

Trueman  v.  Tilden 

543 

Tierman  v.  Binns 

453 

Trull  V.  Trull 

352.  363 

Tilden,  lie 

526 

Trust  V.  Harned 

428 

Tilden  v.  Tilden 

81 

Tuck  V.  Boone 

119 

Tilley  v.  Bridges 

515 

Tucker  v.  Candy 

174 

V.  Trussler 

104 

V.  Green 

409 

Tillman  z'.  Walkup 

170 

V.  Harris 

118 

Tilsen  v.  Haine 

506 

V.  Tucker 

324,  525,  542 

Tilton  V.  Am.  Bible  Society 

479 

V.  Whaley 

195,  397 

Tippmg  V.  Tipping 

225 

V.  Whitehead 

67 

Titterington  v.  Hooker 

428,  438 

V.  Williams 

186 

Tobey  v.  Miller 

190 

Tuggle  V.  Gilbert 

308 

Todd  V.  Moore 

358 

Tug  well  V.  Hey  man 

422 

V.  Wright 

134 

Tullock  V.  Dunn 

389,  401 

V.  Todhunter 

44 

Tunstall  v.  Pollard 

J  73 

Tolcher,  Goods  of 

66 

Turner  v.  Cameron's  Co. 

374 

Tolputt  V.  Wells 

437 

V.  Child 

186 

Tomkies  v.  Reynolds 

329 

V.  Cox 

4'7 

Toiiikins  V.  Tomkins 

465 

V.  Hardey 

400 

Tonilinson  v.  Gill 

255 

V.  Linam 

173 

Tompkins  v.  Tompkins 

324,  32S 

402 

V.  Turner 

200,  453 

7'.  Weeks 

417 

V.  Wardle 

427 

Tonnele  v.  Hall 

87 

V.  Wilkins 

155,405,406 

Toomy,  Goods  of 

37 

Tuttle  V.  Robinson     209, 

227,316,  318 

Torrance  v.  McDougald 

112 

118 

422,  430 

Torre  v.  Castle 

62 

Twaddell's  Appeal 

545 

Torrence  v.  Davidson 

335 

Tweedale  v.  Tweedale 

468 

Towle  V.  Swasey 

490 

512 

Twimble  ?'.  Dziedzyiki 

174 

Towne  V.  Ammidown 

406 

Twitty  V.  Ilouser 

315 

Townesend's  Appeal 

482 

7'.  Lovelace 

512 

Tovvnsend  v.  Gordon 

n8 

Tyler  v.  Bell 

15 

V.  TngersoU 

391 

Tyndall,  Goods  of 

"3.  «'5 

V.  Moore 

170 

Tyrrell  v.  Morris 

341.  347 

Ixviii 


TABLE    OF    CASES. 


u. 


Section 


Section 

Venable  v.  Mitchell 

250 

Udny  V.  Udny 

21,  23 

Venables  v.  East  India  Co. 

51 

Uldrick  v.  Simpson 

46 

Verdier  v.  Verdier 

81 

Underwood  v.  Millegan 

256 

Vermilya  v.  Beatty 

173 

V.  Wing 

467 

\'ernam  v.  Spencer 

63 

Union  Bank  -'.  McDonough 

417 

V'erner,  Estate  of 

538 

t'.  Poulson 

15s 

Vernon  v.  Kirk 

74 

Union  Mutual  Life  Ins.  Co.  v. 

Lewis 

Verplanck,  Re 

13 

116, 

173 

Verret  v.  Belanger 

146 

V.  Stevens 

202 

211 

Vick  V.  Vicksburg 

122 

United  States  v.  Cutts 

205 

Vickers  v.  Bell 

46 

V.  Daniel 

372 

Vincent  v.  Piatt 

213 

V.  Duncan 

428 

V.  Sharp 

203 

V.  Eggleston                208 

,423 

428 

Voelckner  v.  Hudson 

456 

V.  Fisher 

428 

Vogel,  Succession  of 

96 

V.  Fox 

459 

Vogel  V.  Arbogast 

236 

V.  McRae 

169 

V.  Vogel 

32 

V.  Ricketts 

438 

Von  Desen,  Goods  of        115, 

116,  117 

V.  Walker 

408 

Von  Ruseck,  Goods  of 

169 

Upchurch  v.  Nosworthy 

190 

Von  Schmidt  v.  Bourn 

414 

V.  Upchurch 

75 

Voorhees  v.  Stoothoff 

241,  317 

Upson  V.  Badeau 

315 

V.  Voorhees 

84 

Upton  V.  Uord  P'errers 

225 

Vreeland  v.  Vreeland 

356 

Urquhart  v.  King 

494 

Vroom  V.  Van  Horn 

175 

Utiey  V.  Rawlins 

308 

Vulliamy  v.  Noble 

379 

V.  Titcomb 

468 

Utterson  v.  Mair 

33 

. 

Vaden  v.  Hance 

500 

Vail  V.  Givan 

155 

Valcourt  v.  Sessions 

147 

Valentine  v.  Belden 

323 

V.  Jackson 

291 

Van  Bokkelen  v.  Cook 

175 

Vance  v.  Plsher 

509 

Vandruff  v.  Rinehart 

74 

Van  Dermoor,  Re 

211 

Vandever  v.  Freemen 

419 

Van  Duzer,  Matter  of 

428 

Vane  v.  Rigdon 

349 

Van  Giesen  v.  Bridgford 

6,  56 

Vanhook  v.  Barnett 

141 

Van  Home  v.  Fonda 

46 

Vanmeter  v.  Jones 

233.  520 

Vanpelt  v.  Veghte 

402 

Van  Rensselaer  v.  Plainer 

376 

Van  Steenwyck  v.  Washburn 

457 

Van  Straubenzee  v.  Monck 

60 

Van  Vechten  v.  Keator 

512 

Vanzant  v.  Davies 

500 

Vardeman  v.  Ross 

407.413 

Vaughan  v.  Barrett 

24 

V.  Northup 

173.  179 

Vaughen  v.  Haldeman 

227 

Vaughn  v.  Barret 

164 

Vedder  v.  Saxton 

456 

Velho  V.  Leite 

42 

w. 

Wade  V.  Bridges 

V.  Graham 

V.  Lobdell 
Wadsworth  v.  Allcott 

V.  Chick 
Wain  V.  Warltevs 
Wain  ford  v.  Barker 
Wakeman  v.  Hazleton 
Walbridge  ?'.  Day 
Walcott  V.  Hall 
Waldron  v.  Waldron 
Walker  v.  Bradbury 

V.  Byers 

V.  Cheever 

V.  Craig 

V.  Drew 

V.  Hall 

V.  Hardwicke 

V.  Hill 

V.  May 

V.  Patterson 

V.  Symonds 

V.  Torrance 

V.  Walker 

V.  Witter 

V.  Woolaston 
Wallace  v.  Walker 
Waller  v.  Ray 

V.  Waller 
Wallich,  Goods  of 
Wallis  V.  Wallis 


134 
146 

525 
216,  226 
219,  264 

255 
521 
321 
509 
491 
5'2 

489 

419,  445 

438,  520 

362 

120 
230,  522 

512 

444 
195 
255 
324,  402 
154 
236 
426 
134 
153 
531 
74 
42 
132 


15' 


TABLE    OF    CASES. 


Ixix 


Section 


Wall's  Appeal 

421,  543 

Wally  V.  Wally 

450.451 

Walter  v.  Miller 

3^^5 

V.  Racklilfe 

3^9 

Walters  v.  Nettleton 

279 

Walton  V.  Walton 

408,  498 

Walworth  f.  Abel 

120 

Wamsley  v.  Wamsley 

298 

Wapple's  Appeal 

13 

Wartl,  J?^ 

116 

Ward  V.  Bevill 

186 

V.  Jones 

422 

V.  Kitchen 

335 

V.  State 

148 

V.  Turner 

219,  362 

V.  Thompson 

98 

V.  Ward 

247 

Ware,  Ex  parte 

427 

Warfield  v.  Brand 

407,413,415 

Waring  v.  Lewis 

338 

Warren  v.  Poff 

389 

Washburn  v.  Hale 

431 

Washington  v.  Blunt 

47.  157 

Waterhouse  v.  Bourke 

233 

Waterman  v.  Dockray 

409 

Waters  v.  Nettleton 

370 

V.  Ogden 

437 

V.  Stickney    56,  152 

153,  157,160 

Watkins  v.  Adams 

25,  128 

V.  Brent 

87 

V.  Maule 

362 

V.  Romine 

422,  542 

V.  Stewart 

332 

V.  State 

247 

Watson  V.  Blaine 

285 

V.  Collins 

93 

V.  Glover 

91 

V.  McClanahan 

542 

V.  Toone 

358 

V.  Watson 

428,  525 

V.  Whitten 

146 

Watt  V.  Watt 

lOI,  496 

V.  White 

430 

Wattles  V.  Hyde 

146 

Watts  V.  Crook  e 

501 

Way  V.  Priest 

481 

Weaver  v.  Chace 

98 

V.  Penn 

133 

V.  Roth 

506 

V.  Thornton 

247 

Webb,  Matter  of 

'5 

Webb  V.  Adkins 

194 

V.  Bellinger 

3«7 

V.  Dietrich 

33.  J  37 

V.  Kirby 

133 

V.  Needham 

100,  104 

Webster  v.  Hale 

481 

V.  Hammond 

428,  438 

V.  Spencer 

324 

V.  Tibbits 

288 

Weddall  r.  Nixon 
Wedderburn  v.  Weddcrburn 
Weed  V.  Lermond  233, 

Weeks  v.  Cibbs 
V.  Jewelt 
V.  Love 
V.  Sego 
r>.  Sowles 
Weir  V.  Mosher 

V.  Tate 
Welch's  Succession 
Welchman  v.  Sturgis 
Wellboin  v.  Rogers 
Welles  V.  Cowles 
Wells  V.  Betts 
1'.  Brook 
V.  Child 
V.  Miller 
V.  Wells 
Welsh,  In  re 
Welsh  V.  Brown 

V.  Welsh 
Wendell  v.  Wendell 
Wentworth  v.  Cock 
Wernse  ?'.  Hall 
West  V.  Bolton 

V.  Shulteworth 
V.  Waddill 
V.  Wilby 
Westerlo  v.  De  Witt 
Westlev  V.  Clarke 
Wetdri'U  v.  Wright 
Wetmore  v.  Parker 
Wetzler  v.  Fitch 
Wever  v.  Marvin 
Weyer  v.  Second  Nat.  Bank 
Weyland  v.  Weyland 
Whale  V.  Booth 
Whaley  v.  Whaley 
Wheatley  v.  Badger 
Wheeler  v.  Bent 
V.  Fellowes 
V.  Hathaway 
7'.  St.  Joseph  R. 
V.  Wheeler 
Wheelwright,  Coods  of 
Wheelwright  v.  Wheelwright 
Whicker  v.  Hume 
Whit  V.  Ray 
Whitaker  v.  Whitaker         9J 

7'.  Wright 
Whitcomb  v.  Cook 
White,  Re 

White,  Succession  of 
White  V.  Brown 
V.  Ditson 
V.  Donnell 
i>.  Green 
V.  Mann 
v.  White 


Section 

60 

537 

536.  53J< 

190,  240 

120 

409,412 
118 
487 

400 
3«o 
120 

195 
526 

200,  202,  21 S 

375 

99 

>37 

195.  '99 

24 

85 

479 

220,  297 

545 

3i'7 

178 

500 

463 

"55 

1 12 

219 

402 

no,  124 

35 

43 

522 

202,  341 

499 

339 

457 

37.  485 

84 

460 

420 

120 

400 

o 


362 


3 
545 
169 
94,  120 

loi,  13" 

•54 
282 
82 
361 
152 
140 
47  S 
490 
1S4 
468 


Ixx 


TABLE    OF    CASES. 


Section 

Whitehead  v.  Taylor  194,  195 

Whiteside  T'.  Barber  514 

V.  Whiteside  522 

Whitford  v.  Panama  R.  283 

Whiting  V.  Whiting  405 

Whitley  v.  Alexander  320,  358 

V.  Stevenson  450 

Whitmore  v.  Hamilton  469 

V.  San  Francisco  Savings  Union 

420,  430 

Whitney  v.  Peddicord  308,  315 

V.  Phoenix  402 

Whittaker  v.  Whittaker  377 

Whitworth  v.  Oliver  153 

Whorton  v.  ]\Ioragne  340,  346 

Whyte  V.  Rose  165 

Wickeisham's  Appeal  13 

Wickuire  v.  Chapman  105,  109 

Widger,  Goods  of  112 

Widgery  v.  Tepper  99 

Wiggin  V.  Plumer  160 

V.  Svvett       194,  195,  408,  478,  526 

Wilbraham  v.  Ludlow  21 

Wiles  V.  Gresham  387 

Wiley  V.  Brainerd  154 

Wiley's  Appeal  •    223 

Wilkerson  v.  Wootten  400 

Wilkins  v.  EUett  24,  91,  164,  167, 

I73>  176 

V.  Fry  375 

V.  Harris  33,  157 

Wilkinson  v.  Henderson  379 

V.  Hunter  412 

V.  Leland  59 

V.  Perrin  120 

Willamette  Palls  Co.  v.  Gordon  58 

Willard  v.  Hammond  15,  164,  177, 

281 

V.  Van  Leeuwen  430 

Willey  V.  Thompson  439 

Williams's  Appeal  153 

Williams,  Ke  57 

Williams  v.  Breedon  280,  284 

V.  Burrell  366,  367 

V.  Conrad  419 

V.  Gushing  46 

V.  Eaton  430 

V.  Ely  346 

V.  Heales  376 

V.  Holmes  506 

V.  Hopkins  430 

V.  Jakes  1 15 

V.  Kiernan  192 

V.  Maitland  317,  402 

V.  Marshall  358 

V.  Mattucks  268 

V.  Nixon  382,  402 

V.  Penn.  R.  173 

V.  Petticrew  530,  533 

V.  Powell  482 


Williams  v.  Price 
V.  Purdy 
V.  Saunders 
V.  Skinker 
V.  Storrs 
V.  Wilkins 


Section 
428 
439 
»SO 
310 
164 
104 


V.  Williams         174,  295,  316,  317 

329,439,  45'.  464,  465 

Williamson,  Succession  of  98 

Williamson  r'.  Fuibush  116,119,215,430 

V.  Morton  362 

V.  Walker  361 

V.  Williamson  452,  479 

Willing  t'.  Perot  133,  172 

Willis  V.  F"arley  419 

V.  Jones  98 

V.  Smith  213 

V.  Willis  543 

Wiiloughby  v.  McCluer  233,  236 

Wills  V.  Dunn  540 

Wilmerding  v.  McKesson  402 

Wilmington  v.  Sutton  456 

Wilmot,  Goods  of  40,  42 

Wilniot  V.  Woodhouse  470 

Wilson,  Ke  542 

Wilson  V.  Arrick  408 

V.  Beddard              ^  74 

V.  Breeding  496 

V.  Dibble  119 

V.  Doster  352,  362 

V.  Fielding  221 

V.  Frazier  157 

V.  Fridenburg  326 

V.  Hoes  152,  153 

V.  Hudson  184 

V.  Kirby  428 

V.  Lady  Dunsany  15,  426 

V.  Lineburger  308,  404 

V.  Moore  357 

V.  Paul  437 

V.  Shearer  423 

V.  Staats  323 

V.  Tucker  366 

V.  Whitefield  137 

V.  Wilson  247,  250,  438,  494 

W^ind  V.  Jekyl  4 

Windeatt  v.  Sharlaiid  112 

Windsor  v.  Bell  43 

Winegar  v.  Newland  417 

Wingate  v.  Pool         200,  322,  441,  542 

V.  Wooten  153,  155 

Winn  V.  Slaughter  193 

Winslow  V.  Merchants'  Ins.  Co.        227 

Winsor  v.  Pratt  74 

Winter  v.  Hite  258 

V.  Winter  173 

Winthrop  v.  Jarvis  255 

Winton's  .Appeal  13 

Wirt  V.  Pintard  160 

Wiswell  V.  Wiswell  238 


TABLE    OF    CASES. 


Ixxi 


Withy  V.  Mangles 
Witman's  Appeal 
Witsel  V.  Pierce 
Wolif  V.  SchaelTer 
WoUaston  ?'.  Ilakewill 

c.  Wollaston 
Womick  V.  Boyd 
Wood.  AV 
Wood  7'.  Brown 

V.  Chetwood 

V.  Ellis 

V.  Gaynon 

V.  Mathews 

V.  Matthews 

V.  Myrick 

V.  Nelson 

V.  Penayre 

V.  Tunnicliff 

V.  Vandenburgh 

V.  Williams 

V.  Wood 
Wood's  Appeal 
Wood's  Estate 
Woodbury  v.  Woodbury 
Wooden  v.  Cowles 
Woodfin  V.  McNealy 
Woodgate  t'.  Field 
Woodin  V.  Bagley 
Woodman  v.  Woodman 
Woodruff  V.  Cook 

V.  Shultz 

V.  Woodruff 
Woodruffe  v.  Cox 
Woods,  Goods  of 
Woods  V.  Elliott 

V.  North 

V.  Ridley     251,  257, 

V.  Sullivan 
Woodward  7'.  Goulstone 
Woodyard  v.  Polsley 
Wooldridge  ?'.  Bishop 
Woolfolk  V.  Beatly 
Woolfork  V.  Sullivan 


Woolley  V.  Clark 
Wootton  V.  Redd 
Worgang  v.  Clipp 
Worman,  Goods  of 
Worth  V.  McAden 


160, 


Section 

•03 
522,  520 

iiS 
142,  148 

5'9 

455 

247 

401,  402 

32 
433 
227 

58 
15 

322 

241 

478,  481 

387.  396 
490 

147,  148 
137 

349,  352 

345»  421 
448 
418 

146,  207 

5'9 
288,  387 
496 
265 
172 

525 
106 

35 
316 

355.  361 

258,  259,  542 

324,  327 

84 

389 

195 

120 

190 

190,  194, 195 

474 

146 

98 

43.  402 


Section 


Worthington  v.  Gittings 

'5« 

Worlhley  v.  Hammo 

nd 

428 

W'ray  v.  Field 

468 

Wren  -'.  Gayden 

247 

Wright  7'.  Ciilbert 

•74 

v.  Lowe 

520 

V.  McXatt 

•54 

V.  Minshall 

218 

V.  Mongle 

88 

V.  Phillips 

6 

>74 

V.  Schmidt 

144 

V.  Tatham 

73 

V.  Walibaum 

160 

V.  Ware 

28 

V.  Williams 

301 

V.  Wright 

104, 

247.  439. 

45 » 

Wyatt  V.  Williams 

283 

Wyck,  Matter  of 

156 

Wyckhoff,  Goods  of 

Wyman  v.  Halstead 

24 

228 

V.  Symmes 

76 

V.  Wyman 

218 

Wy man's  Appeal 

387 

Wyse  V.  Smith 

430 

Y. 


Yarborough  v.  Leggett 

386,  387 

Yardley  v.  Arnold 

421 

Yates  V.  Clark 

'54 

V.  Maddan 

487 

Yeldell  v.  Shinholster 

244 

Yerger  v.  Jones 

352 

Yingling  v.  I  lesson 

390 

York  V.  York 

456 

Young  V.  Alexander 

239 

V.  Kennedy 

»75 

7.  Kimball 

457 

V.  O'Neal 

408 

Young's  Appeal 

402 

z. 


Zimmerman  v.  Anders 
V.  Zimmerman 


459 
62 


THE    LAW 


EXECUTORS  AND  ADMINISTRATORS. 


PART    I. 

INTRODUCTORY  CHAPTER. 

§  I.  Estates  of  Deceased  Persons;  how  Settled  in  Modern 
Practice ;  Theory  of  Judicial  Supervision. —  When  a  person 
dies,  leaving  a  fair  amount  of  personal  property,  his  estate  is 
usually  set  apart,  in  our  modern  English  and  American  prac- 
tice, to  be  settled  under  the  immediate  supervision  of  local 
and  usually  county  tribunals  invested  with  appropriate  func- 
tions, whose  fundamental  duty  it  is  to  exact  a  settlement 
according  to  law ;  and,  moreover,  with  due  respect  to  the  last 
wishes  of  the  deceased,  if  such  wishes  were  properly  expressed 
by  him  during  his  lifetime  while  of  sound  and  disposing  mind. 

The  main  objects  proposed  are  these  :  that  the  personalty 
of  the  deceased  be  properly  collected,  preserved,  and  (together 
with  income  and  profits)  duly  accounted  for;  that  his  just 
debts  and  the  charges  consequent  upon  his  death  and  the 
administration  of  his  estate  be  paid  and  adjusted,  with  such 
discrimination  only  as  the  law  recognizes  in  case  the  assets 
should  prove  insufficient ;  that  the  immediate  necessities  of 
spouse  and  young  children  (if  there  be  such  surviving)  be  pro- 
vided for  as  the  statute  may  have  directed ;  that  the  distri- 
bution and  division  of  the  residue  or  surplus  of  the  estate  be 
made  among  such  persons  and  in  such  proportions  as  the 
will  of  the  deceased,  if  there  be  one,  otherwise  the  statute  of 
distribution  may  have  prescribed.  Where  the  deceased  left 
what  purports  to  be  a  will,  the  solemn  establishment  of  that 
will  and  its  public  authentication  require  further  attention 
from  such  tribunals  ;  specific  or  general  legacies  must  be  paid 

I 


§  2  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

next  after  the  debts,  taking  their  peculiar  priorities,  and  the 
balance  or  residuary  fund  reckoned  up  and  adjusted  accord- 
ingly, if  not  already  exhausted. 

Whether  a  last  will,  entitled  to  probate,  be  left  or  not,  the 
management  of  the  estate  must  be  judicially  committed  to 
the  person  or  persons  rightfully  entitled  to  represent  the 
deceased  ;  he  or  they  qualifying,  by  giving  bond  with  or 
without  security,  as  the  case  may  be,  for  a  faithful  perform- 
ance of  the  trust,  and  thereupon  receiving  letters  under  the 
seal  and  authentication  of  the  court.  And  this  by  way  of 
public  credentials  or  a  commission,  to  be  respected  in  all 
other  courts  throughout  the  jurisdiction  of  the  State  or 
country.  All  this  judicial  supervision  and  direction  is  exer- 
cised, in  England  and  the  United  States,  by  peculiar  tribunals, 
whose  jurisdiction  and  powers  are  in  modern  times  usually 
defined,  if  not  created,  by  local  statutes.  But  chancery  courts 
in  England  have  a  considerable  supervision  of  such  matters 
besides. 

§  2.  Settlement  of  Estates,  Testate  or  Intestate ;  Executors 
and  Administrators,  and  their  Functions  ;    Administration.  —  The 

estates  of  deceased  persons,  it  is  thus  perceived,  are  well 
classified  as  testate  and  intestate :  the  one  class  embracing  all 
estates  to  be  settled  under  a  will ;  the  other,  all  estates 
for  settlement  where  there  was  no  will.  In  many  respects, 
such  as  the  collection  and  preservation  of  effects,  and  the 
payment  of  debts  and  charges,  there  is  little  or  no  essential 
difference  found  in  our  modern  practice  between  these  two 
classes.  For  it  is  a  fundamental  maxim  of  our  common  law 
that  all  just  existing  debts  shall  be  paid  out  of  one's  property 
before  any  further  disposition  thereof  can  take  effect.^  But 
great  differences  are  perceived  when  it  comes  to  that  further 
disposition  of  the  dead  person's  property ;  a  testate  estate 
being  divided  and  distributed  according  to  the  testament- 
ary directions  of  the  deceased,  while  that  of  an  intestate 
goes  by  the  public  mandate.  The  representative  follows  a 
private  plan  and  specifications   in  the  one  case,  but  not  in 

^  Coke,  2d  Inst.  398;   Bouv.  Diet.  "Administration." 
2 


PART    I.]  INTRODUCTION.  §  2 

the  Other,  so  far  as  he  deals  with  the  surplus  above  debts  and 
charges. 

This  representative  under  a  will,  so  peculiarly  intimate  in 
his  relation  with  the  thoughts  and  wishes  of  the  deceased,  is 
styled  an  executor  in  the  former  instance  ;  an  e.xecutor  being 
the  person  who  is  charged  by  the  testator  with  the  execution 
or  putting  in  force  of  his  will.^  The  corresponding  represen- 
tative, for  other  cases,  is  an  adiniin'strator ;  this  term  apply- 
ing, not  only  where  the  deceased  person  left  no  valid  will  at 
all,  but  where  the  estate  is  testate,  and  yet,  for  one  reason  or 
another,  there  is  no  person  found  to  execute  the  will  whom 
the  testator  may  be  said  to  have  actually  designated  or  se- 
lected for  the  office.^  And  hence  arises  some  confusion  in 
legal  terms  when  we  seek  to  distinguish  between  the  repre- 
sentatives of  testate  and  of  intestate  estates  ;  though  the 
words  exixntors  and  adntinistratoj's  are  commonly  employed 
in  that  connection  as  if  correlative. 

The  common-law  distinction  is,  in  fact,  here  founded  in 
considerations  of  privilege  attached  to  the  personal  choice  by 
the  deceased  of  his  own  representative,  —  considerations  which 
in  the  lapse  of  time  have  lost  much  of  their  early  force.  The 
executor  was  said,  by  English  jurists,  to  derive  his  authority 
from  the  will,  rather  than  from  any  judicial  appointment  at 
all ;  and  hence  his  formal  qualification  for  the  office  was 
deemed  of  secondary  consequence ;  the  English  temporal 
courts  showing  no  great  solicitude  for  upholding  that  peculiar 
authority  over  decedents'  estates  which  spiritual  tribunals 
asserted.  On  the  other  hand,  it  was  admitted  that  an  ad- 
ministrator's authority  was  derived  wholly  from  the  appoint- 
ment made  by  such  tribunals,  though  this  appointment  were 
in  literal  pursuance  of  the  statute."'  The  modern  tendency, 
however,  both  in  England  and  the  United  States,  is  to  assim- 
ilate the  powers  and  duties  of  these  two  classes  of  legal 
representatives  so  far  as  may  be ;  to  recognize  the  departure 
of  their  several  functions  only  so  far  as  the  distinction  be- 
tween settling  estates  testate  and  intestate  fairly  produces  it ; 

^  2  Bl.  Com.  503;   3  Atk.  Ch.  301.  ^  ggg  2  Bl.  Com.  495  ;   Part  II.,  post, 

2  2  Bl.  Com.  494.  as  to  appointment. 

3 


§  3  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

to  require  both  executors  and  administrators  to  take  out  let- 
ters and  qualify  in  the  same  special  court,  rendering  their 
accounts  upon  a  like  plan  and  subject  to  a  like  supervision ; 
and  to  rule  that  the  choice  of  an  executor  by  the  testator 
gives  the  one  a  marked  advantage  for  securing  the  judicial 
appointment  in  preference  to  others  desiring  the  ofifice,  and 
upon  peculiarly  favorable  terms,  perhaps,  as  to  furnishing 
security,  but  not  so  as  to  override  or  dispense  with  the  judi- 
cial discretion  altogether. 

Nevertheless,  executors  and  administrators  are  technically 
distinguished  in  our  law  as  before.  One  selected  judicially  to 
settle  an  estate  under  a  will,  not  being  named  in  that  will,  is 
styled  an  administrator  (not  executor),  with  the  will  annexed  ; 
and  there  is  no  executory  so  to  speak,  apart  from  some  desig- 
nation under  the  will  of  the  person  who  shall  officiate  in  the 
trust.  Consequently,  "execution"  being  a  term  quite  liable 
to  legal  misconception,  and  in  probate  law  confined  at  all 
events  to  the  narrower  connection,  the  word  "administration  " 
is  at  the  present  day  acquiring  a  broad  signification,  as  more 
nearly  synonymous  with  the  general  management  and  settle- 
ment of  a  deceased  person's  estate.^  For,  as  a  jurisprudence 
developes,  which  takes  in  the  whole  compass  of  our  highly 
interesting  and  important  subject,  the  necessity  becomes  felt 
for  a  single  appropriate  and  universal  term,  applicable  to  es- 
tates whether  testate  or  intestate,  and  to  the  winding-up  of  a 
dead  owner's  affairs  under  spiritual  or  probate  supervision  ; 
and  such  a  term  the  common  law  does  not  supply. 

S    3.    Whether  there   may  be  a  "Will  without   an   Executor. — 

The  logical  distinction  between  executors  and  administrators 
appears  to  have  been  more  precisely  stated  in  the  ancient  days 
of  our  law  than  in  modern  times.  For,  to  quote  from  Swin- 
burne, "  the  naming  or  appointment  of  an  executor  is  said  to 
be  the  foundation,  the  substance,  the  head,  and  is  indeed  the 
true  formal  cause  of  the  testament,  without  which  a  will  is  no 
proper  testament,  and  by  the  which  only  the  will  is  made  a 

1  See  e.g.  Bouv.  Diet.  "  Administra-  heading;  thougii  the  more  common  title 
tion."  Some  digests  of  the  present  day  is  still  like  that  of  the  present  volume, 
are  arranged  with  reference  to  such  a     "  Executors  and  Administrators." 

4 


PART   I.]  INTRODUCTION.  §  4 

testament."^  And  other  early  English  authorities  are  to  the 
same  purport.^  Nevertheless,  our  modern  practice  proceeds 
upon  quite  a  different  theory  ;  and  while  there  can  be  no 
executor  without  some  will  to  name  or  constitute  him,  it  is 
certain  that  a  will  properly  executed  may  be  valid  without 
naming  an  executor  at  all,  or  notwithstanding  the  executor 
named  dies  before  probate  or  from  one  cause  or  another 
becomes  disqualified  from  acting ;  in  any  of  which  contingen- 
cies the  probate  court  will  constitute  an  administrator  with 
the  will  annexed.^ 

§  4.  Devise  and  Bequest  or  Legacy  distinguished  ;  •w^hether  a 
Will  can  operate  upon  Property  afterwards  acquired.  —  In  its 
literal  and  technical  import  the  word  devise  refers  only  lo  real 
estate  ;  whereas  a  bequest  is  a  gift  by  will  of  personal  property. 
Under  a  will,  to  devise  is  to  give  real  estate  to  another ;  and 
to  bequeath  is  to  give  personal  property  to  another.*  The  term 
legacy,  too,  which  is  a  gift  by  last  will,  applies  more  familiarly 
(as  the  history  of  wills  at  English  law  indicates)  to  personal 
property,  or  to  money,  goods,  and  chattels,  although  sometimes 
employed  with  further  reference  to  a  charge  upon  real  estate.^ 
In  fact,  a  devise  of  lands,  when  such  dispositions  became  per- 
mitted, was  seen  to  be  distinguishable  in  its  operation  from 
a  will  or  testament ;  for  a  will  or  testament  operated  in  gen- 
eral terms  upon  all  the  personal  property  of  which  the  testator 
might  die  possessed,  save  so  far  as  he  chose  to  except  partic- 
ular chattels ;  whereas  a  devise  of  lands  was  treated  in  the 
courts  rather  as  a  conveyance  by  way  of  appointment  of  par- 
ticular lands  to  a  particular  devisee.^  Upon  such  a  principle 
of  distinction  it  became  established  in  practice  that  one  could 
devise  only  lands  of  which  he  was  seized  at  the  time  of  its 
execution ;  whereas  his  will  and  testament  would  operate  of 

1  Swinb.  pt.  I,  §  3,  pi.  19.  the  administrator,  under  the  appellation 

2  Godolphin,  pt.   I,  c.  I,  §  2;   Plowd.     of  "  codicil."     Wms.  Exrs.  7. 

185;   Wms.  Exrs.  7.  *  Bouv.  Diet.  "Devise,"  "Bequest," 

8  .See   2  Chanc.  Rep.   II2;     Appoint-  etc. 

ment,/><7j/,  Part  II.     Even  under  the  old  *  Bouv.    Diet.    "Legacy."     .\nd    see 

law,   an   instrument  which  would    have  post  as  to  the  payment  of  legacies, 

been  a  testament  had  an  executor  been  ®  Harwood  v.  Goodright,  Cowp.  90; 

named,  was  considered  obligatory  upon  4  Kent  Com.  502;   Wms.  Exrs.  6,  7. 

5 


§   5  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

right  upon  personal  property  before  or  afterwards  acquired, 
provided  only  that  he  died  possessed  of  it.^ 

The  modern  extension  of  testamentary  facilities  to  the  dis- 
position of  a  testator's  whole  estate,  whether  real,  personal, 
or  mixed,  tends,  however,  to  subvert  distinctions  of  this  latter 
description.  In  the  United  States,  wills  are  usually  per- 
mitted to  operate  upon  real  estate  and  descendible  interests  of 
every  description  ;  and  local  statutes  expressly  recognize  the 
right  of  a  testator  to  pass  his  after-acquired  lands  and  landed 
estates  and  interests,  giving  effect  to  his  manifest  intention 
accordingly.  Manifest  intention  is  the  rule  of  guidance  cor- 
respondingly as  to  all  dispositions  of  personalty,  though  pre- 
sumptions as  to  that  intention  may  differ  ;  and  hence  "will 
and  testament"  have  long  been  the  words  popularly  used  in 
this  country  ^  as  applicable  to  one's  property  of  whatever  de- 
scription which  he  disposes  of  with  testamentary  intention. 
In  England,  too,  "devise,"  since  the  year  1837,  has  lost  much 
of  its  special  significance ;  for  the  statute  of  wills,  i  Vict.  c.  26, 
extends  the  power  of  disposing  by  one's  will  duly  executed 
to  all  such  real  and  personal  estate  (including  landed  interests) 
as  the  testator  may  be  entitled  to  at  the  time  of  his  death, 
notwithstanding  his  title  vests  subsequently  to  the  execution 
of  his  will. 2 

§  5-  Personal  Property  is  administered ;  Tvhether  Real  Estate 
can  be  applied.  —  The  management,  settlement,  or  administra- 
tion of  the  estates  of  deceased  persons  relates  primarily  and 
fundamentally  to  personal  property  alone ;  for  with  the  real 
estate  of  the  testate  or  intestate  decedent,  his  executor  or 
administrator  has  at  common  law  no  concern.*  This  rule  is 
owing  partly  perhaps  to  the  jealousy  with  which  bishops  and 
their  tribunals  of  special  jurisdiction  over  estates  of  the  dead 
were  formerly  regarded ;  but  we  should  chiefly  ascribe  it  to 

1  Wind  V.  Jekyl,    i   P.    Wms.    575;     Kent  Com.  501.     And  see  Wms.  Exrs. 
Wms.  Exrs.  6,  7.  6,  7,  Perkins's  n. 

'^  Chancellor  Kent  observed  this  pop-         ^  ggg  y^^t.   I  Vict.  c.  26,  §   3 ;   Wms. 
ular  use  of  words  in  the  United  States     Exrs.  preface. 

early    in   the   present   century.     See  4        *  This  subject  is  considered  at  length] 

post. 


PART    I.]  INTRODUCTION,  §   5 

that  Stability  of  real  estate  tenure  as  contrasted  with  title  to 
personal  property,  which  is  at  the  basis  of  English  policy  and 
English  jurisprudence.  An  ancestor's  lands  vested  in  his 
descendant  at  his  decease  without  further  formality ;  the 
heir-at-law  became  invested  with  the  dignities  and  respon- 
sibilities pertaining  to  the  founder ;  in  England  a  statute  of 
descents  was  not  framed  like  a  statute  of  distributions.  "By 
the  laws  of  this  realm,"  observes  Swinburne,  one  of  our 
earliest  writers  of  repute  on  testamentary  law,  "as  the  heir 
hath  not  to  deal  with  the  goods  and  chattels  of  the  deceased, 
no  more  hath  the  executor  to  do  with  the  lands,  tenements, 
and  hereditaments  "  ;  ^  and  if  the  executor  as  such,  notwith- 
standing the  confidence  reposed  in  him,  took  no  interest  in 
the  real  estate  of  his  testator,  still  less  did  an  administrator 
in  the  lands  of  an  intestate.  Debt  and  charges,  nevertheless, 
remain  obligatory  upon  the  estate,  so  long  as  property  of  the 
deceased  may  be  found  for  their  satisfaction  ;  and  hence,  if 
the  personal  assets  prove  insufficient,  the  lands  may  be  ap- 
plied to  make  up  the  deficiency  on  license  of  the  court ; 
modern  statutes  in  England  and  the  United  States  greatly 
enlarging  all  earlier  facilities  in  this  respect.  Moreover,  an 
executor  may  have  been  empowered  in  fact  to  deal  with  real 
estate  under  the  will  of  his  testator ;  who  naturally  on  his  part 
does  not  bestow  the  bulk  of  his  fortune  upon  those  surviving 
him  in  these  days  without  contemplating  a  general  disposi- 
tion of  his  property,  real,  personal,  and  mixed. 

A  schedule  of  real  estate  of  the  deceased  is  therefore  to  be 
included  in  the  inventory  which  an  executor  or  administrator 
returns  to  the  court  from  whose  appointment  he  derives  full 
authority  ;  the  schedule  of  personal  property,  however,  serv- 
ing alone  as  the  basis  of  his  accounts. ^  And  while  such  real 
estate,  in  the  absence  of  a  will  making  inconsistent  provis- 
ions, may  still  as  formerly  be  said  to  vest  in  the  heir  at  once^ 
upon  the  owner's  decease,  an  incumbrance  or  cloud  remains 
on  the  title  until  a  sufficient  period  has  elapsed  for  presenting 
claims  against  the  estate  or  it  otherwise  appears  clear  that 
the  personal  representative  will  not  be  compelled  to  resort  to 

^  Swinb.  pt.  6,  §  3,  pi.  5.  2  ggg  ^s  to  Inventory  and  Assets,  /osi 

7 


§  6  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

the  land  because  the  personal  assets  prove  deficient  for  the 
purposes  of  winding  up  the  estate.^ 

§  6.  Succession  in  the  Civil  ILavr ;  as  distinguished  from 
Administration. — Our  common-law  system  of  "administra- 
tion" (using  this  word  in  its  broadest  sense  2)  whereby  a 
deceased  person's  estate  becomes  sequestered,  so  to  speak, 
and  confided  to  legal  representatives  for  the  purposes  we 
have  described,  appears  to  have  no  precise  counterpart  in 
Roman  jurisprudence.  "Succession"  is  a  general  term 
used  by  civilians  with  reference  to  the  status  derived  from 
the  transmission  of  the  rights  and  obligations  of  a  deceased 
person ;  but  "title  by  succession  "  is  very  different  from  that 
representative  or  trust  title  to  personalty  which  one  takes  at 
our  law  as  an  executor  or  administrator  ;  being  indeed  so  com- 
plex and  abstruse  a  topic  as  hardly  to  deserve  our  studious 
attention.  The  heir  stepped  into  the  place  vacated  by  the 
deceased,  enjoying  his  property  rights,  and  burdened  with  his 
property  responsibilities  ;  this  was  the  fundamental  principle 
of  succession,  the  successor  himself  being  called  at  Roman 
law  /meres,  and  that  to  which  he  succeeded  Jiaereditas. 
Upon  such  heir  (whose  status  was  somewhat  like  that  of  our 
common-law  heir  to  whom  real  estate  descends,  when  the 
ancestor  has  left  no  other  property)  devolved  at  Roman  law 
the  personal  duty  of  discharging  legal  debts  and  incum- 
brances of  the  deceased ;  and,  moreover,  if  the  deceased  left 
a  will,  of  satisfying  the  special  testamentary  provisions  in 
addition.  In  this  latter  respect,  it  appears  that  the  heir  was 
bound  to  pay  all  legacies  so  far  as  the  property  descending  to 
him  might  suffice,  and  no  farther ;  but  as  to  the  former,  legal 
consistency  for  the  space  of  a  thousand  years  in  Roman 
history  compelled  the  successor  to  pay  all  the  debts  of  his 
deceased  predecessor,  whether  the  property  obtained  from 
the  estate  proved  sufficient  or  not  ;  a  harsh  but  legitimate 
consequence  of  the  theory,  which  disappeared  in  the  age  of 
Justinian,  at  which  era  inventories  were  introduced  in  order 

1  This  subject  will  be  considered   at         ^  Supra,  §  2. 
length,  Part  \\\.,  post. 

8 


PART    I.]  INTRODUCTION.  §  6 

that  the  estates  of  heir  and  decedent  mipjht  be  separated.* 
Religious  scruples  had  all  the  while  prompted  the  successor 
of  an  insolvent  to  make  personal  sacrifice  ;  for  religious  and 
temporal  duties  were  blended  in  the  succession ;  and  the 
estate  of  the  deceased  who  died  insolvent  was  stigmatized 
as  damnosa.  The  heir  enjoyed  of  course  the  usual  privileges 
of  a  residuary  legatee  ;  and  after  the  changes  introduced 
by  Justinian,  two  classes  of  heirs  were  found  to  have  sprung 
up  in  Roman  practice  :  the  one  consisting  of  those  who  made 
no  inventory,  and  bore  the  ancient  burdens  of  a  legal  succes- 
sion ;  the  other,  of  those  who  made  an  inventory,  and,  leaving 
the  decedent's  estate  to  be  honored  or  dishonored  upon  its 
own  merits,  required  creditors  to  confine  their  claims  to 
assets  available  from  the  estate,  not  contributing  from  their 
own  private  fortunes  to  make  up  a  deficiency.^ 

Thus  was  the  old  theory  of  succession  gradually  forsaken 
in  the  latter  days  of  the  Roman  empire,  the  heir  becoming 
more  nearly  in  effect  like  what  we  style  an  executor  or 
administrator,  if  so  he  preferred.  It  is  to  be  presumed  that 
the  person  who  was  instituted  heir  might  renounce  the  suc- 
cession if  he  chose,  and  thus  escape  all  burdensome  obliga- 
tions. And  in  default  of  a  testamentary  succession,  —  that 
is,  the  constitution  of  the  heir  by  a  will  duly  executed  in  the 
forms  prescribed  by  law,  —  or  where  he  renounced  the  inher- 
itance, a  legal  succession  arose  in  favor  of  the  nearest  relatives 
of  the  deceased ;  moreover,  an  irregular  successioji  became 
established  by  law  in  favor  of  certain  persons  or  of  the  State 
in  default  of  heirs  either  legal  or  instituted  by  testament. 
Such  doctrines  certainly  pertain  to  the  civil  law  of  modern 
Europe  and  of  American  colonies  founded  by  the  French 
and  Spanish. 3 

"Administration"  and  "administrators"  are  terms  not 
employed,  however,  by  either  the  ancient  or  modern  civilians, 
as  it  would  appear,  though  our  "administration  "somewhat 


^  Hunter  Roman  Law,  567,  568.    In         -  Hunter     Roman    Law,    567,    568, 
a  few  instances  prior  to  Justinian    the     574-576. 

Praetor  allowed  a  separatio  bonorum.  lb.         ^  Domat  Civ.  Law  by  Strahan,  §  3125; 

Bouv.  Diet.  "  Succession." 

9 


5  7  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

resembles  the  bonorum  possessio  of  imperial  Rome.^  But,  as 
concerns  the  settlement  of  testate  estates,  while  the  Roman 
testator  seldom  committed  such  functions  to  other  persons 
than  the  testamentary  heir  himself,  and  similar  restraints  are 
still  imposed  in  some  European  localities,  modern  custom  in 
France  greatly  favors  the  special  institution  of  executors, 
and  leaves  the  testator  at  liberty  to  name  persons  who  shall 
take  all  or  part  of  the  movable  property  for  executing  the 
dispositions  under  the  will  confided  to  their  care.^  And  thus 
may  one's  testamentary  dispositions  take  effect  and  be  fully 
executed,  notwithstanding  the  absence,  death,  or  possible 
misconduct  of  the  testamentary  heir,  and  this  by  means  of 
representatives  whose  judgment,  integrity,  and  business  qual- 
ifications may  be  weighed  without  the  prepossessions  of 
family  affection.  For  freedom  in  the  selection  of  executors 
under  a  will  is  the  surest  pledge  of  the  faithful  execution  of 
that  will  according  to  the  interests  of  all  concerned  under 
its  provisions. 

§  T.  Testacy  preferred  to  Intestacy  in  Civil  and  Common 
La'w  ;  Former  Abuses  in  English  Law  where  Intestate  Estates 
were  administered.  —  Under  both  the  civil  and  common-law 
traditions,  as  it  thus  appears,  a  person  of  fortune  has  been  ex- 
pected to  dispose  of  his  personal  estate  by  a  will ;  and  tracing 
either  law  to  its  source,  we  shall  find  testacy  in  that  respect 
decidedly  preferred  to  intestacy.  Indeed,  the  contempt  of 
pur  early  English  law  for  those  who  from  want  of  foresight 
or  opportunity  died  leaving  behind  them  personal  property 
not  bequeathed  by  some  last  will  and  testament  in  a  formal 
manner  was  strikingly  manifested.  The  intestate  came  into 
the  category  of  bastards  and  other  unfortunates.  The  king, 
according  to  the  old  maxims,  might  seize  upon  his  goods  and 
chattels  as  parens  patriae ;  and  for  a  considerable  time  the 
feudal  superior  or  lord  of  a  demesne  exercised  by  delegation 

^  Colquhoun  Rom.  Civ.  Law,  §   141 3.  tion  of  a  will  devolved  upon  the  "  insti- 

2  Domat  Civ.  Law,  §§  3330-3334.    In  tuted    heir"   without    issuance    of   any 

our  early  colonial  days,  when  the  civil  letters  whatever.     Van  Giesen  v.  Bridg- 

law,  as  modified  by  the  usages  of  Hoi-  ford,  18  Hun  (N.Y.)  73. 
land,  prevailed  in  New  York,  the  execu- 

10 


PART    I.]  INTRODUCTION.  §  / 

the  right  of  administration  ;  after  which  this  branch  of  the 
prerogative  passed  to  the  bishop  or  ordinary  in  the  several 
dioceses  upon  a  trust  to  distribute  the  residue  of  the  intestate's 
goods  in  charity  to  the  poor  or  for  what  were  deemed  pious 
uses.  These  prelates  soon  abused  a  trust  for  which  they 
were  held  accountable  in  truth  only  to  God  and  their  spiritual 
superiors ;  they  would  take  to  themselves,  in  their  several 
jurisdictions  the  whole  surplus  of  an  intestate's  estate  after 
deducting  the />arU's  rationabiles ;  that  is  to  say,  two-thirds  to 
which  one's  wife  and  children  (if  he  left  such)  were  entitled ; 
and  this  without  even  paying  his  just  debts  and  lawful  charges. 
That  iniquitous  rule  Pope  Innocent  IV.  recognized  as  the 
established  common  law  of  Great  Britain  as  early  as  the  mid- 
dle of  the  thirteenth  century.^ 

Two  acts  of  Parliament  put  an  end  to  this  abuse  of  spiritual 
power:  (i)  the  Statute  of  Westm.  II.  (declaratory  of  the  com- 
mon law),  which  required  the  ordinary  to  pay  the  debts  of  the 
intestate  so  far  as  his  goods  extended,  in  the  same  manner 
that  executors  were  bound  to  do  where  one  died  testate  ; 
(2)  the  Statute  31  Edw.  III.  c.  1 1,  under  whose  later  provisions 
the  ordinary  ceased  to  be  a  sort  of  haeres  under  an  intestate 
succession,  and  became  obliged  to  depute  administration  to 
the  nearest  and  most  lawful  friends  of  the  deceased,  instead 
of  administering  as  before  in  person  and  without  accounta- 
bility.2  These  statutes  went  far  towards  altering  former 
hardships  and  bringing  executors  and  administrators  upon  an 
equivalent  footing  of  legal  accountability  to  all  those  inter- 
ested in  the  estate ;  though  abuses  continued  as  to  surpluses, 
for  which  the  temporal  administrator  in  his  turn  deserved 
reproach,  the  ecclesiastical  courts  having  endeavored  in  vain 
to  force  a  proper  distribution  of  intestate  estates  by  taking 
bonds  from  these  legal  representatives  to  that  intent.  At 
length  was  enacted  the  Statute  of  Distributions,  22  &  23  Car. 
II.  c.  10,  and  the  administrator  of  an  intestate  estate  could 
no  longer   administer   for  his    personal   benefit.'^     The    first 

1  2  Bl.  Com.  495,  496.  7th  Eng.   ed.  401 ;    Snelling's  Case,  5 

2  2  Bl.  Com.  495,  496;   Wms.    Exrs.     Rep.  82  b. 

^  Wms.  Exrs.  1484. 
II 


§  8  EXECUTORS    AND    ADMINISTRATORS.  [pART    I. 

American  colonies  were  planted  before  the  date  of  this  last 
important  enactment  of  the  English  Parliament ;  but  positive 
enactments  of  a  similar  character  have  long  prevailed  in  every 
State  of  this  Union. ^  And  how  much  of  excellent  legislation  on 
dry  subjects  our  countries  of  English  origin  trace  to  the  reign 
of  that  good-natured  and  dissipated  monarch  who  followed 
Cromwell  and  the  Commonwealth,  no  jurist  can  ever  forget. 

§  8.  Wills  of  Real  and  Personal  Property,  ■whether  distin- 
guishable of  Right;  Modern  Statute  of  Wills. —  From  the  time 
of  the  Norman  Conquest  until  the  reign  of  Henry  VIII.  an 
English  subject  had  strictly  speaking  no  right  to  dispose  by 
will  of  his  real  estate  ;  but  the  land  would  descend  to  the  heir 
by  force  of  the  law  of  descents  which  favored  a  first-born  son 
above  all  other  children.  It  was  constantly  admitted,  how- 
ever, that  wills  of  chattels  or  personal  property  might  be 
made ;  and  the  term  "  chattels,"  of  course,  embraced  terms 
for  years  and  other  chattels  real,  which,  being  of-  less  dignity 
than  a  freehold,  followed  necessarily  the  same  general  doc- 
trines as  chattels  personal.^  But  the  acts  32  &  34  Henry 
VIII.  sanctioned  to  a  considerable  extent  the  devise  of  lands, 
upon  the  testator's  observance  of  certain  formalities  which 
were  further  set  out  by  the  celebrated  Statute  of  Frauds  (29 
Car.  II.). 

In  the  United  States  primogeniture  was  early  abolished 
with  all  its  attendant  privileges,  or  rather  preferences ;  and 
our  ancestors,  from  the  earliest  colonial  establishment,  appear 
to  have  permitted  the  devise  of  lands  by  will  under  statute 
regulations  based  upon  these  English  enactments.^  Since 
our  independence  of  Great  Britain,  American  policy  has 
favored,  in  the  several  States,  the  execution  of  wills  with  the 
same  formalities,  whether  to  pass  real  or  personal  property, 
or  both  kinds  together.  This  same  just  doctrine  has  at 
length  gained  a  firm  footing  in  England  by  operation  of  the 
important  modern    Statute   of  Wills,    i  Vict.    c.    26  (which 

1  See  post  as  to  Distribution.  ^  ^  j^ent  Com.  504,  505 ;    Part  II, 

2  Wms.Exrs.l;  Co.  Litt.i  1 1  b,note(l)     post. 
by  Hargrave;  i  Schoul.  Pers.  Prop.  §  9. 

12 


PART    I.]  INTRODUCTION.  §    lO 

affects  all  English  wills  made  from  and  after  January  i, 
1838);  under  whose  provisions  it  is  rendered  lawful  for  every 
person  to  devise,  bequeath,  and  dispose  of  all  real  estate  and 
all  personal  estate  which  he  shall  be  entitled  to  at  the  time 
of  his  death,  either  at  law  or  in  equity,  provided' the  will 
be  executed  with  the  formalities  therein  prescribed.^ 

§  9.  Ancient  Doctrine  of  the  Reasonable  Parts  of  "Widow  and 
Children;  "Wills  of  Personal  Property  affected.  —  But  while  the 
common  law  permitted  one  to  bequeath  his  personal  property 
by  will,  a  restriction  appears  to  have  prevailed  in  the  reign  of 
Henry  II.  as  to  the  person  who  died  leaving  a  wife  or  issue 
or  both  surviving  him.  In  such  a  case  the  man's  goods  and 
chattels,  if  he  left  both  wife  and  children,  were  divided  into 
three  equal  parts  :  one  went  to  his  heirs  or  lineal  descendants, 
another  to  his  wife,  and  only  the  remaining  third  went  accord- 
ing to  his  own  express  disposition  ;  though,  if  only  a  wife  sur- 
vived him,  or  only  issue,  a  moiety  went  to  such  wife  or  such 
issue,  and  he  might  bequeath  the  other  moiety.  These 
shares  of  wife  or  children  were  called  their  reasonable  parts, 
and  the  writ  de  rationabili parte  bonorutn  lay  for  the  recovery 
of  these  portions.  If,  however,  the  testator  died,  leaving 
neither  widow  nor  issue,  his  will  might  operate  so  as  to  dis- 
pose absolutely  of  all  his  personalty  ;  and  the  legal  restriction 
itself,  whether  of  general  force,  or  existing  only  in  certain 
localities  by  custom,  gradually  disappeared,  the  date  of  its 
extinction  as  well  as  its  origin  being  obscure.^ 

§  10.  Jurisdiction  in  the  Grant  of  Letters  Testamentary  and 
Administration  ;  English  Ecclesiastical  Courts.  —  Jurisdiction 
over  wills  and  their  probate  in  England  belonged,  before 
ecclesiastical  functions  were  exercised  in  such  cases,  to  the 


1  Wms.  Exrs.  7th  ed.  5.     This  Stat.  2    Bl.    Com.    492.     English    authorities 

(1  Vict.  c.  26)  is  set  forth  at  length  in  differ    upon   the   question  whether    the 

the  preface  to  the  6th  and  later  editions  writ  de  rationabili  parte  honoruni  was 

of  Williams's    work;  also    in  Schouler  given  by  the  common  law  or  custom. 

Wills  (1887),  appx.     See  Part  II.,  c.  i,  This   doctrine   will    be    noticed    again 

posty  as  to  the  appointment  of  executors,  under  the  head  of  Distribution,  post. 


2  Wms.  Exrs.  2,  3;  Co.  Litt.  176  b; 


13 


§    lO  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

county  court  or  to  the  court  baron  of  the  manor  where  the 
testator  died  ;  and  before  these  county  tribunals  all  other 
matters  of  civil  dispute  were  determined.  This  power  of  the 
■  probate  existed  down  to  a  quite  recent  period  in  certain  Eng- 
lish manors,  and  so  as  to  preclude  the  interference  of  the 
ordinary.  The  earl  formerly  presided  over  this  county  court ; 
though  subsequent  to  the  introduction  of  Christianity  the 
bishop  sat  with  the  earl.  Soon  after  the  Norman  invasion, 
however,  the  ecclesiastical  and  temporal  jurisdictions  were 
separated ;  and  gradually  the  bishops  became  invested  with 
plenary  authority  as  to  matters  which  pertained  to  the  estates 
of  the  dead.  Some  English  writers  appear  to  have  regarded 
this  authority  as  in  fact  usurped  by  the  ecclesiastics.^  But 
Blackstone  ascribes  it  rather  to  the  crown's  favor  to  the 
Church,  citing  the  observation  of  Perkins  that  the  law  con- 
sidered spiritual  men  of  better  conscience  than  laymen,  and 
thought  that  they  had  more  knowledge  as  to  what  things  would 
conduce  to  the  benefit  of  the  soul  of  the  deceased.^  And 
according  to  the  great  English  commentator,  the  disposition 
of  intestates'  effects  once  granted  in  confidence  by  the  crown 
to  the  ordinary,  the  probate  of  wills  followed  as  of  course : 
for  it  was  thought  just  and  natural  that  the  will  of  the  de- 
ceased should  be  proved  to  the  satisfaction  of  the  prelate, 
whose  right  of  distributing  his  chattels  for  the  good  of  his 
soul  was  effectually  superseded  thereby.^  This  ecclesiastical 
or  spiritual  judisdiction  —  attended  as  it  was  with  flagrant 
abuses  at  which  the  Papacy  seems  to  have  connived  — 
doubtless  inspired  dread  and  disaffection  in  the  temporal 
courts  and  among  the  English  laity  ;  for  restraints  were  put 
repeatedly,  by  statute  or  judicial  construction,  upon  the  or- 
dinary's authority,  even  in  cases  where  he  strove  to  enforce 
justice,  and  the  necessity  of  probating  wills  was  reduced  to 
the  narrowest  limits.* 

1  Colquhoun  Rom.  Civ.  Law,  §  141 3.  usiis,  such  as  the  support  of  the  poor, 

2  Perkins,  §  486 ;  2  Bl.  Com.  494.  and  the  redemption  of  captives;  but 
^  2  Bl.  Com.  494.  (prol)ably  for  the  sake  of  correcting 
^  Colquhoun  observes  that  the  Roman  some  effort  of  the  ecclesiastics  to  usurp 

law  enabled  bishops  or  their  superiors     probate    jurisdiction)    prohibited    them 
to  maintain  suits  for  legacies  left  in  pios     from  meddling  with  the  probate  or  reg- 

14 


FART    I.]  INTRODUCTION.  j^'    I  I 

§11.  Probate  Jurisdiction  in  the  United  States. —  The  Ameri- 
can system  of  jurisdiction  over  estates  of  the  deceased  was 
always  far  more  simple  and  symmetrical  than  that  which  thus 
grew  up  in  the  mother  country.  Our  early  ancestors  felt  the 
need  of  some  tribunal  whence  letters  testamentary  and  of 
administration  should  issue;  and  at  the  same  time,  rejecting 
the  idea  of  a  spiritual  jurisdiction  and  courts  of  bishops  such 
as  then  made  part  of  the  British  system,  they  came  back  to 
the  primitive  notion  of  county  courts  which  should  blend  pro- 
bate with  common-law  functions.  From  these  county  courts 
lay  an  appeal  to  the  supreme  temporal  tribunal.  But,  as 
population  grew,  these  powers  exercised  by  the  inferior 
courts  called  once  more  for  a  division,  without,  however,  any 
necessity  for  placating  bishops.  New  county  tribunals  were 
accordingly  erected  for  the  transaction  of  such  business  as 
might  pertain  to  estates  of  the  dead,  testamentary  trusts,  the 
guardianship  of  orphans,  and  the  like.  To  the  old  county 
courts  was  left  their  common-law  jurisdiction,  while  the  su- 
preme court  retained  control  over  them  all,  as  alike  the  tribu- 
nal of  final  resort  in  matters  relating  to  common  law,  probate, 
and  equity. 

Such  is  the  general  origin  of  probate  jurisdiction  in  the 
United  States.  But  the  local  courts  thus  clothed  with  pri- 
mary authority  respecting  wills  and  adminstration  have  borne 
different  names  and  varied  as  to  procedure  in  many  details, 
in  accordance  with  the  local  codes.  In  New  England  and  in 
most  of  the  Western  States  whose  legislation  bears  the  im- 
press of  New  England  ideas,  each  county  has  its  appropriate 
court  and  judge  of  probate ;  in  New  York  we  find  the  county 
surrogate ;  in  New  Jersey  an  orphans'  court  or  ordinary  ;  in 
Pennsylvania  and  various  other  States  an  orphans'  court ; 
while  in  some  parts  of  this  country,  and  particularly  the 
pioneer  region,  probate  functions  are  still  exercised  by  the 
general  parish  or  county  tribunals.^  For  convenience  we 
shall  in  this  treatise  speak  of  all  such  tribunals  as  "  courts  of 

istry  of  wills.     Colquhoun    Rom.    Civ.     resembles  in  some  measure  the  bonorum 
Law,  §  1413.     Administration  of  goods    possessio  oi\.\\Q  Roman  law.     lb. 
at  the  English  law,  he  further  observes,         ^  See  2  Kent  Com.   226,  227;   Smith 

(Mass.)  Prob.  Pract.  1-5. 

15 


§    12  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

probate  "  (such  being  perhaps  the  most  famihar  designation), 
and  the  law  pertaining  to  this  jurisdiction  over  estates  of  de- 
ceased persons  as  "probate  law."  All  such  courts  have  a  judge 
or  surrogate  who  performs  the  appropriate  judicial  duties,  and 
a  register  who  records  the  wills,  letters  and  accounts,  for  pub- 
lic inspection,  and  performs  other  duties  corresponding  more 
nearly  to  those  of  a  clerk  of  courts.  Probate  courts  and  their 
officers  constitute  a  part  of  the  local  judiciary  system  of  each 
State ;  yet  the  functions  performed  by  judge  and  register 
are  in  many  respects  analogous  to  those  of  administrative 
officers. 

§  12.  Probate  Jurisdiction  in  the  United  States;  the  Subject 
continued.  —  These  probate  tribunals,  or  substitutes  for  the 
English  spiritual  courts,  being  of  statute  creation,  their  juris- 
diction and  practice  are  defined  at  much  length  in  the  several 
States  by  legislative  enactment.  American  policy  demands 
that  estates  of  the  dead,  if  not  really  trivial  in  'character  or 
amount,  shall  pass  through  the  probate  office  for  the  benefit 
of  all  parties  interested  ;  that,  under  the  scrutiny  of  the  court, 
they  shall  be  wound  up  regularly,  expeditiously,  and  economi- 
cally by  representatives  whose  credentials  of  authority  are  pro- 
cured from  the  proper  county  tribunal,  and  upon  the  filing  of 
due  security  ;  that  wills,  whether  relating  to  personal,  real,  or 
mixed  property,  shall  be  presented  for  probate  as  soon  after 
the  testator's  death  as  decency  permits  ;  that  the  rights  of  all 
persons  interested  in  a  dead  person's  estate,  including  credit- 
ors, legatees,  and  next  of  kin,  shall  be  sedulously  protected, 
whether  one  died  testate  or  intestate  ;  and  that,  so  far  as  may 
be  convenient,  testaments,  inventories,  the  accounts  of  exec- 
utors or  administrators,  and  other  essential  documents  show- 
ing the  condition  and  course  of  settlement  of  each  deceased 
person's  estate  shall  be  preserved  for  inspection  in  the  county 
probate  files,  and  made  matter  of  public  registry  ;  though 
practically,  if  the  representative  be  duly  qualified,  and  the 
will  or  the  fact  of  intestacy  clearly  placed  on  record,  the 
bond  of  the  representative  affords  security  to  all  concerned 
that  any  omission  to  render  an  inventory  and  accounts  need 

i6 


PART    I.]  INTRODUCTION.  §    1 3 

not  work  them  an  injury  if  private  and  family  considerations 
hinder  the  pursuit  of  those  full  formalities.  As  the  fortunes 
of  most  citizens  of  consequence  may  thus  be  passed  in  review 
on  their  death,  the  living  man's  regard  for  this  sort  of  post- 
mortem reputation  among  his  surviving  relations,  neighbors, 
and  acquaintances,  imparts  a  fresh  stimulus  to  acquisition, 
besides  imposing  a  check  upon  loose  and  fraudulent  transac- 
tions ;  the  muniments  of  title  to  property  by  will  and  inheri- 
tance are  well  preserved  ;  and  not  to  mention  the  gratification 
of  an  idler's  curiosity,  facts  may  be  ascertained  at  the  probate 
registry  of  high  importance  to  the  public  assessor,  statisti- 
cian, and  local  historian. 

§  1 3.  The  Subject  continued  ;  Probate  Procedure  in  the  United 
States.  —  As  befits  an  authority  which  thus  pervades  the 
sanctity  of  a  household,  crosses  the  threshold  and  exposes  to 
public  view  the  chamber  of  mourning,  probate  jurisdiction  in 
the  United  States  is  exercised  with  great  simplicity  of  form 
as  well  as  decorum.  Costs  and  fees  are  trifling ;  the  mode  of 
procedure  is  by  a  simple  petition  which  states  the  few  facts 
essential  to  give  the  court  jurisdiction  ;  in  various  counties 
the  needful  blanks  may  be  obtained  from  the  register ;  and 
of  so  informal  a  nature  is  the  hearing  before  the  judge  or 
surrogate  that  parties  appear  often  without  legal  counsel,  the 
usual  aspect  of  a  probate  court-room  in  the  rural  counties  be- 
ing that  of  some  executive  office  where  business  is  summarily 
disposed  of.  In  many  parts  of  the  United  States  probate 
courts  are  pronounced  courts  of  record ;  apart  from  which,  to 
authenticate  wills,  qualify  executors  and  administrators,  and 
supervise  the  settlement  and  distribution  of  the  estates  of 
deceased  persons,  affords  to  all  such  local  tribunals  an  inde- 
pendent and  highly  responsible  sphere  of  judicial  action, 
exclusive  in  the  first  instance.  In  the  construction  of  testa- 
mentary trusts,  and  upon  various  other  subjects,  probate 
courts  exercise  often  a  concurrent  authority  with  those  of 
equity  ;  and  in  general  the  right  of  appeal  from  their  decrees 
to  the  final  state  tribunal,  tiiough  exercised  comparatively 
seldom,  gives  assurance  that  the  delicate  discretion  reposed 

17 


§  13 


EXECUTORS    AND    ADMINISTRATORS. 


[part  I. 


in  these  temporal  magistrates  will  not  be  seriously  abused.^ 
And  yet,  important  as  must  be  the  functions  of  these  probate 
judges,  public  registry  is  the  prominent  feature  of  our  county 
probate  offices,  if  not  of  probate  jurisdiction  ;   and  for  system 


1  In  New  Jersey  the  court  of  chan- 
cery has  concurrent  jurisdiction  with  the 
orphans'  court  in  the  settlement  of  the 
accounts  of  executors  and  administrators, 
and  may  assume  exclusive  jurisdiction 
at  any  time  before  decree  of  allowance ; 
but  no  interference  will  be  made  where 
the  settlement  is  proceeding  regularly 
in  the  orphans'  court  unless  special 
cause  is  shown.  Search  v.  Search,  27 
N.  J.  Eq.  137.  Under  New  York  stat- 
utes the  jurisdiction  of  the  surrogate  to 
compel  an  account  from  the  fiduciary  is 
not  exclusive,  but  concurrent  with  the 
supreme  court,  and  the  right  to  resort 
to  an  equity  tribunal  appears  in  general 
peculiarly  appropriate  where  the  circum- 
stances of  a  case  are  such  as  to  require 
relief  of  a  nature  which  the  probate  or 
surrogate  tribunal  cannot  afford.  Had- 
dow  V.  Lundy,  59  N.  Y.  320;  Rogers 
V.  King,  8  Paige,  210;  Story  Eq.  Jur. 
§§  53°~543-  Statutes  relating  to  pro- 
bate jurisdiction  will  not  be  presumed 
to  divest  the  usual  chancery  courts  of 
their  equitable  jurisdiction  in  the  matter 
of  legacies,  even  though  a  concurrent 
jurisdiction  be  conferred.  Catlin  v. 
Wheeler,  49  Wis.  507.  And  in  matters 
of  purely  equitable  cognizance  relating 
to  the  administration  of  estates,  the  pro- 
bate court  has  presumably  no  jurisdic- 
tion, without  enabling  acts.  Butler  v. 
Lawson,  72  Mo.  227.  Such  a  court 
must  not  entertain  proceedings  beyond 
its  statutory  functions.  Winton's  Ap- 
peal, III  Penn.  St.  387.  But  a  New 
York  surrogate  may  construe  a  will 
far  enough  to  determine  to  whom  lega- 
cies shall  be  paid.  Verplanck  Re,  91 
N.  Y.  439.  And  in  Massachusetts  the 
probate  court,  subject  to  appeal,  may 
consider  a  question  of  capital  and  in- 
come in  passing  upon  a  trustee's  account. 
N.  E.  Trust  Co.  z// Eaton,  140  Mass.  532. 

But  with  reference  to  procuring  let- 

I 


ters  testamentary  or  of  administration, 
the  probate  of  wills,  and  the  general 
supervision  of  inventories  and  accounts 
in  connection  with  the  settlement  of  the 
estate  of  a  deceased  person,  the  local  or 
county  probate  tribunal  acts  in  most 
States  with  plenary  powers  in  the  first 
place;  an  appeal  lying  to  the  supreme 
tribunal  of  the  State,  at  the  instance  of 
any  person  aggrieved  by  the  decree. 
As  to  revising  a  probate  decree  which 
has  been  once  affirmed  an  appeal,  see 
Gale  z/.  Nickerson,  144  Mass.  415. 

Rules  for  the  guidance  of  the  county 
probate  courts  are  in  various  States  left 
to  the  supreme  judicial  court  (which  is 
the  supreme  court  of  probate)  ;  and  to 
such  rules  when  made*and  promulgated 
each  probate  court  must  conform.  Baker 
V.  Blood,  128  Mass.  543.  The  jurisdic- 
tion of  probate  tribunals  over  claims 
against  a  solvent  estate  is  not  usually 
exclusive,  but,  at  best,  only  concurrent 
with  that  of  the  common-law  courts,  and 
the  creditor  may  elect  to  sue  in  another 
tril)unal.  Griggs'  Estate,  11  Phila. 
(Penn.)  23.  And  see  Wapple's  Ap- 
peal, 74  Penn.  St.  100. 

On  the  whole,  the  doctrines  which 
relate  to  probate  jurisdiction  should  be 
studied  in  connection  with  the  general 
subject  of  chancery  powers.  The  Eng- 
lish decisions  afford  much  light  on  this 
topic ;  yet  it  should  be  borne  in  mind 
that  probate  jurisdiction  in  the  United 
States  differs  greatly  from  the  English 
ecclesiastical  jurisdiction,  as  understood 
prior  to  the  independence  of  the  Amer- 
ican colonies.  Our  American  probate 
system  is  more  comprehensive  than  that 
of  England,  and  rests  more  firmly  upon 
separate  state  enactments  and  the  judi- 
cial exposition  of  those  state  enact- 
ments. Probate  law  and  practice  as 
concerning  the  United  States,  must,  in 
the  main,  be  studied  with  reference  to 

8 


PART    I.]  INTRODUCTION.  §    I4 

and  care  in  preserving  the  public  records,  the  judge,  as 
well  as  the  register,  may  be  held  responsible  in  a  certain 
ministerial  capacity.^ 

§  14.  Modern  Probate  Jurisdiction  in  England  ;  Ne-vr  Court  of 
Probate  Act.  —  This  American  system  —  so  simple,  so  frugally 
administered,  so  well  adapted  to  its  ends,  and  withal  so  uni- 
form of  application  in  settling  estates  of  the  dead,  and  so  fully 
harmonizing  with  the  arrangement  of  the  temporal  courts  — 
appears  to  have  gradually  impressed  Britons  as  superior  to 
their  own.  In  many  branches  of  jurisprudence,  doubtless, 
American  legislators  draw  their  inspiration  from  abroad  ;  but, 
for  probate  as  well  as  matrimonial  law,  the  breeze  blows 
freshest  from  their  own  side  of  the  Atlantic,  and  the  United 
States  may  be  regarded  as  preceptor  to  the  mother  country. 
By  the  English  Statute  of  20  &  21  Vict.  c.  yy  (a.d.  1857), 
that  jurisdiction  which  ecclesiastical  courts  formerly  exer- 
cised in  Great  Britain  has  been  transferred  to  a  new  tribunal 
known  as  the  Court  of  Probate,  and  the  authority  of  the  ordi- 
nary, as  well  as  of  the  old  manorial  and  other  peculiar  courts, 

the  judicial  system  of  each  particular  the  power  to  appoint  judicial  officers  is 
State.  See  the  authorities  cited  at  great  vested  by  the  State  constitution  in  the 
length,  under  such  an  arrangement,  in  governor.  Opinion  of  Justices,  117 
U.  S.  Dig.  1st  Series,  Courts,  II.,  and  Mass.  603.  And  it  is  within  the  con- 
Annual  Digests  (1870  ei  seq.'),  under  stitutional  authority  of  the  legislature, 
the  same  general  heading.  Some  of  the  by  general  Jaw,  to  change  the  term  of 
more  important  points  of  practice  will  office,  or  to  abolish  the  office  itself,  and 
be  incidentally  noticed  under  appro-  transfer  the  powers  and  duties  to  an- 
priate  heads  in  the  course  of  the  present  other;  as  has  sometimes  been  done, 
treatise.  See  also  such  practical  works  where,  for  instance,  the  office  of  register 
upon  State  probate  law  as  those  of  of  "  probate  and  insolvency  "  was  sub- 
Smith  (Mass.),  Amasa  Redfield  (New  stituted  for  that  of  "  register  of  probate." 
York),  and  Gary  (Wisconsin,  etc.).  lb. 

^  See  e.g.  Thompson  v.  Holt,  52  Ala.  A  judge  of  probate  should  not  grant 

491.     The  register,  in  some  States,  ap-  administration  in  an  estate  in  which  he 

pears  capable  of  exercising  some  judi-  is  personally  interested;    and  local  stat- 

cial  functions  of  a  routine  ch.iracter  by  utes   generally   provide  for  all    confin- 

way  of  deputy.     Wickersham's  Appeal,  gencies  by  allowing  the  judges  of  dif- 

75   Penn.  St.  334;  Thornton  v.   Moore,  ferent   counties    to  hold   court   for  one 

61  Ala.  347.     But,  in  general,  the  reg-  another.     Sigourney  v.  Sibley,  22  Pick, 

istev's  duties    are  ministerial  or   corre-  507.     Or    by  removal  from  the  county 

sponding  to  those  of  a  clerk  of  courts  to  another  court.     Burks  v.  Bennett,  55 

and  custodian  of  records.     He  may  be  Tex.  237. 
elected  by  the  people,  notwithstanding 

19 


§    14  EXECUTORS    AND    ADMINISTRATORS.  [PART    I, 

is  entirely  superseded.  All  causes  relating  to  the  grant  and 
revocation  of  probate  of  wills  and  of  administration  within 
English  jurisdiction  are,  by  that  enactment,  vested  in  the 
new  tribunal  —  a  temporal  court  whose  grants  and  orders 
have  full  effect  throughout  all  England,  and  in  relation  to 
the  personal  estate  in  all  parts  of  England  of  deceased  per- 
sons ;  and  this  court  of  probate  is  declared  a  court  of  record. 
All  the  powers  formerly  exercised  by  that  supreme  ecclesias- 
tical forum,  the  prerogative  court  of  the  archbishop  of  Can- 
terbury, have  been  thus  transferred ;  the  new  probate  court 
has  the  power  of  citation,  the  power  to  examine  witnesses 
and  require  their  attendance  as  well  as  the  production  of 
deeds  and  documents  ;  the  power  to  enforce  its  own  orders 
and  to  issue  execution  for  costs  ;  the  power  to  order  any 
instrument  produced  which  purports  to  be  testamentary ;  and 
the  power  to  make  rules  and  orders  for  regulating  procedure. 
Its  general  practice  is  in  accordance  with  the  former  practice 
of  the  prerogative  court ;  the  rules  of  evidence -in  common- 
law  courts  being  applied  in  the  trial  of  all  questions  of  fact.^ 
Appeal  lies  from  this  court  of  probate  to  the  House  of 
Lords  :  the  privy  council  having  formerly  exercised  the  final 
jurisdiction  in  causes  testamentary.  Courts  of  equity  are 
courts,  as  before,  for  the  construction  of  wills  ;  and  so  for- 
merly, in  concurrence,  were  the  ecclesiastical  courts  ;  but  the 
new  court  of  probate  is  expressly  forbidden  to  exercise  such 
jurisdiction  ;  and  no  suit  for  legacies,  nor  for  distribution  of 
a  residue,  can  be  brought  therein.  Bonds,  inventories,  and 
accounts  are  rendered  to  the  court  of  probate ;  the  place  for 
depositing  wills  is  under  its  control  ;  and  calendars  are  kept 
in  its  principal  registry,  district  registries  being  established 
according  to  its  direction.  Application  for  probate  or  admin- 
istration may  be  made  to  the  court  of  probate ;  but  in  small 
estates  the  judge  of  the  county  where  the  deceased  had  his 
last  "fixed  place  of  abode  "  shall  have  the  contentious  juris- 
diction and  authority.^ 

^  Act   20  &  21   Vict.  c.   77;    Wms.  2  ^ct  20&  21  Vict.  c.  77,  with  amend- 

Exrs.  7th  Eng.  ed.   290,  294,  312,  323,     ment,  21  &  22  Vict.  c.  98;    Wms.  Exrs. 
344-  298,  301,  315,  320,  573. 

20 


PART    I.]  INTRODUCTION.  §    I  5 

The  main  purport  of  this  enactment  is  to  supplant  the  old 
ecclesiastical  tribunals  by  a  temporal  court  whose  law  and 
procedure  shall  be  in  harmony  with  the  general  judicial 
establishment  of  the  realm  ;  to  perfect  a  uniform  system  of 
probate  registry  ;  and  to  encourage  the  practice  of  procuring 
credentials  of  authority  wherever  the  estate  of  a  deceased 
person  has  to  be  settled,  at  the  same  time  increasing  the 
facilities  for  so  doing.  The  English  probate  practice,  though 
simplified  certainly  by  this  later  legislation,  is  still,  however, 
more  costly  and  burdensome  apparently  than  that  of  most 
American  States,  and  is  less  identified  with  county  tribunals 
and  the  local  neighborhood  of  the  decedent.^ 

§  15.  Conflict  of  Law^s  in  Wills  and  Administration;  General 
Rule  of  Comity  ;  Authority  of  Representative  is  Local  ;  Rule  as  to 
Foreign  Creditors.  —  The  conflicting  laws  of  various  countries 
give  rise  to  perplexing  inquiries  incidental  to  the  settlement 
of  an  estate  which  must  be  solved  on  the  principles  of  comity. 
As  respects  the  estate  of  any  deceased  person,  the  general 
rule  is  that  the  law  of  the  place  of  his  last  domicile,  rather 
than  the  law  of  the  place  of  his  birth,  or  of  the  place  where 
he  happened  to  die,  or  of  the  place  where  the  personal  prop- 
erty was  situated,  shall  prevail.  And,  if  all  circumstances 
favor,  the  sole,  or  at  least  the  principal,  grant  of  letters  ought 
to  be  taken  out  and  the  will  proved,  in  the  country,  the 
State,  and  indeed  the  very  county,  where  one  was  a  domiciled 
inhabitant  at  the  time  of  his  death.  But  local  sovereign  law 
does  not  always  give  way  to  the  law  of  the  last  domicile 
where  assets  belonging  to  the  deceased  person's  estate  lie 
within  the  local  sovereign  jurisdiction,  and  strict  compliance 

1  In  a  recent    instance,  appeal    was  of  the  estate,  it  was  found  that  the  per- 

taken  from  the  Court  of  Probate  to  the  sonal  estate  would  not  suffice  to  pay  the 

House  of  Lords  on  an  issue  as  to  the  costs.     A  chancery  suit  was  then  iiisti- 

person    to    whom    probate    should    be  tuted  to  determine  whether  costs  couhl 

granted.      The    House   of   Lords   were  be  enforced  out  of  the  real  estate ;   l)ut 

evenly  divided,  so  that  the  order  of  the  it  was  held  that  they  could  not,  the  Cour! 

Court  of  Probate  remained  unreversed,  of  Probate  having  jurisdiction  only  ovci 

The  case  having  been   remitted  to  the  the  personalty.     Charter  v.  Charter,  L 

Court  of  Probate  with  directions  that  the  R.  7.  H.  L.  364;    ib.  24  W.  R.  874. 
costs  of  both  parties  should  be  paid  out 

21 


§    15  EXECUTORS    AND    ADMINISTRATORS.  fPART    I, 

with  the  foreign  law  would  prove  detrimental   to    the  local 
interests. 

(i)  It  is  a  principle  of  English  and  American  law  that 
letters  testamentary  or  of  administration  granted  in  the  place 
of  last  domicile  of  the  deceased  confer  no  authority  as  such 
outside  the  jurisdiction  of  the  State  or  country  in  which  they 
were  originally  issued  ;  and  if  the  representative  is  permitted  to 
collect  effects,  or  to  sue  for  assets,  in  an  external  jurisdiction, 
it  is  because  of  a  favor  extended  to  him,  and  not  his  right ;  the 
usual  requirement  being  rather,  as  local  laws  frequently  pro- 
vide, that  probate  of  the  will  (if  there  be  one)  shall  be  made 
in  the  jurisdiction  thus  invaded  ;  and  often  that  there  shall 
be  a  local  qualification  of  some  sort  and  local  letters  taken 
out,  if  not  by  the  principal  executor  or  administrator,  by 
some  local  person  as  his  attorney  or  substitute.  The  due 
probate  of  a  will  in  the  original  jurisdiction  is,  to  be  sure, 
often  respected  by  the  law  of  other  States  or  countries,  as  in 
permitting  evidence  by  exemplified  copy  from  the  original 
probate  record  to  suffice  for  proof.^  But  as  respects  mere 
administration  on  an  assumed  intestacy,  the  fact  of  local 
assets,  or  of  some  local  necessity  for  conferring  a  local  pro- 
bate appointment,  may  serve  for  invoking  the  local  jurisdic- 
tion. Ancillary  probate  authority  will  be  granted  in  one 
State  or  country  under  such  circumstances,  because  principal 
letters  testamentary  or  of  administration  have  been  granted 
elsewhere ;  and  yet  the  domestic  court  does  not  necessarily 
defer  its  own  appointment  until  the  will  of  a  non-resident 
testator  has  been  proved  in  the  State  or  country  of  his  last 
domicile,  nor,  in  case  of  the  decedent's  supposed  intestacy, 
wait  until  administration  has  been  granted  in  such  State  or 
country ;  but  the  practical  convenience  of  creditors  and 
citizens  in  its  own  jurisdiction  will  be  steadily  regarded,  pro- 
vided there  be  assets  at  hand  whose  owner  has  deceased.^ 

1  Price  V.  Dewhurst,  4  M.  &  Cr.  76,  M.  &  Cr.  89;  2  Kent  Com.  434.  And  see 
80;  Campbell  v.  Sheldon,  13  Pick.  8;  Bowdoin  v.  Holland,  10  Cush.  17;  Doo- 
Campbell  v.  Wallace,  10  Gray,  162;  little  z^.  Lewis,  7  Johns.  Ch.  45;  Willardf. 
Wood  V.  Matthews,  73  Mo.  477;  She-  Hammond,  21  N.  H.  385;  Sanders t'.Bar- 
gogg  V.  Perkins,  34  Ark.  117.  rett,  8  Ired.  Eq.  246;  Story  Confl.  Laws, 

2  Wms.  Exrs.  362,  430;  Tyler  z/.  Bell,  2  §§  512,  513,  and  numerous  cases  cited. 

22 


PART    I.J  INTRODUCTION,  §    1 5 

In  short,  the  title  of  the  executor  or  administrator,  derived 
from  the  i;rant  of  administration  in  the  country  of  the  domi- 
cile of  the  deceased,  does  not  extend,  as  a  matter  of  right, 
beyond  the  territory  of  the  government  which  grants  it  and 
the  personal  or  movable  property  therein  ;  as  to  movables  or 
personal  property  elsewhere,  the  title,  if  acknowledged,  is  ac- 
knowleged  only  from  comity  ;  and  comity  yields  to  the  local 
obligation  of  protecting  domestic  rights  as  against  foreign.^ 

(2)  With  regard  to  the  administration  of  foreign  assets,  the 
prevailing  American  doctrine  favors  the  law  of  the  State  or 
country  where  the  assets  are  situated,  over  that  of  the  last 
domicile,  or  at  least  equally  to  it,  so  far  as  regards  creditors 
of  the  estate;  it  being  a  rule  of  public  convenience,  that 
property  of  the  deceased  within  reach  of  the  domestic  process 
shall  be  applied  to  the  liquidation  of  debts  in  consonance  with 
domestic  policy.^  For,  it  should  be  observed,  the  application 
of  one's  property  to  the  payment  of  debts  is  fairly  regulated 
in  every  State  or  country  according  to  a  public  sense  of  jus- 
tice, which  overrides  all  external  regulations  or  legal  prefer- 
ences ;  where  creditors'  rights  are  to  be  enforced,  there  the 
law  of  the  forum  may  well  be  invoked.  A  State  or  country, 
moreover,  inclines  to  uphold  its  own  priorities  as  to  taxes  and 
other  public  claims ;  though,  as  among  general  claimants,  in 
case  the  estate,  as  a  whole,  proves  insufficient  to  pay  them  in 
full,  comity  seeks  apparently,  in  modern  times,  to  so  adjust 
the  estate  in  different  jurisdictions  as  to  make  2i  pro  rata  set- 
tlement of  claims  as  a  whole,  and  not  expend  all  in  paying 
claims  of  domestic  citizens  to  the  prejudice  of  foreign  cred- 

1  Story  Confl.  Laws,  §  512;    Moore  On  a  claim  assigned  to  the  plaintiff  by 

V.  Fields,  42    Penn.  St.  472.     Foreign  a  foreign  executor,  an  action  is  allowa- 

executors    and    administrators    cannot  ble  in  a  State  where  there  has  been  no 

merely  by  virtue  of  their  offices,  either  probate  or  administration.    Campbell  v. 

prosecute  or  defend  actions  in  the  courts  Brown,  64  Iowa,  425. 
of  other  States.     In  some  instances  the  -  Harrison  v.  Sterry,  5  Cranch,  299; 

disability  has  been  removed  l)y  statute;  Smith  v.  Union  Bank,  5  Pet.  523;    Hol- 

but  where  that  is  not  the  case,  and  the  comb  v.   Phelps,    16  Conn.  127;   Story 

representative    has"  not    removed    the  Confl.  Laws,  §§  480,  481,  524.     As  to 

assets  or  some  portion  of  them  into  the  the    English    doctrine    cf.    Wilson    v. 

Stale  where  action  is  brought,  the  prohi-  Lady  Dunsany,  18   Beav.   293;    Carron 

bition  of  the  common  law  prevails.    See  Iron  Co.  v.  Maclaren,  4  H.  L.  Cas.  455; 

Webb,  Matter  of,  18  N.  V.  Supr.  124.  Goodall  v.  Marshall,  11  N.  H.  88. 

23 


§    l6  EXECUTORS    AND    ADMINISTRATORS.  [PAKT    1. 

itors.^  The  tendency  of  modern  legislation  in  this  las\; 
respect,  which  we  gather  from  local  statutes,  is  by  no  means 
selfish  ;  it  is  yielding  much  not  to  appropriate  local  assets  to 
the  satisfaction  first  of  local  creditors. 

§  1 6.  Conflict  of  La'OT^s  ;  Comity  Favors  as  to  Payment  of  Leg- 
acies and  Distribution.  —  (3)  But  when  it  comes  to  the  payment 
of  legacies  or  the  general  distribution  of  the  residue  of  one's 
personal  estate,  after  debts  and  claims  are  satisfied,  comity 
highly  respects  the  law  of  the  last  domicile  of  the  deceased.^ 
For  all  such  dispositions  of  the  surplus  being  at  the  sole  dis- 
cretion of  a  decedent,  either  as  manifested  by  his  last  will  and 
testament,  if  he  has  left  one,  or  as  defined  under  the  will 
drawn  up  for  him  by  the  legislature  of  his  own  last  domicile, 
so  to  speak,  which  every  intestate  may  be  presumed  to  have 
accepted  in  lieu  of  other  express  testamentary  provisions  on 
his  own  part,  it  is  but  just  to  give  that  express  or  implied  will 
due  effect  in  every  country  where  the  estate  of  tlie  deceased 
may  happen  to  be  situated.  Transmission,  therefore,  to  lega- 
tees and  distributees,  of  a  decedent's  personal  estate,  is  gov- 
erned exclusively  by  the  law  of  the  decedent's  actual  domicile 
at  the  time  of  his  death,  no  matter  what  was  the  country  of 
his  birth  or  his  former  domicile,  or  the  actual  si't/is  of  such 
property  at  the  time  of  his  death.^     On  the  whole,  it  must  be 

1  Mitchell  V.  Cox,  22  Ga.  32;  Nor-  may  receive  each  an  equal  share  in  pro- 

mand  z'.  Grognard,    14  N.  J.   L.  425.  portion  to  their  respective  debts.    Davis 

Some  countries  and  States  malte  various  z'.  Estey,  8  Pick.  475;    Mass.  Gen.  Stats, 

classes,  preferring  debts  on  judgments  c.  loi,  §§  40,  41. 

to  simple  contract  debts;    others  accord         ^  Bruce  v.    Bruce,  6  Bro.  P.  C.  566; 

no  such  preference  and  hence  abide  as  Crispin  v.    Doglioni,  3  Sw.  &   Tr.    98; 

to    local    assets    by    their    own    system,  S.  C.   L.   R.    I    H.    L.    301 ;    Holmes  v. 

though    the    deceased    were    domiciled  Remsen,    4   John.    Ch.    460;    Ennis   v. 

abroad.     Under   the  provisions  of  the  Smith,   14   How.    (U.   S.)    400;    Wms. 

Massachusetts  statute  citizens  cannot  be  Exrs.    1515,  and    Perkins's   Am.    note; 

put    to    the    inconvenience    of  proving  Jennison    v.     Hapgood,    ID    Pick.    77 ; 

their  claims  abroad  when  they  are  local  Crum   v.  Bliss,  47  Conn.  592;    Russell 

assets;   nor,  on  the  other  hand,  can  the  v.  Madden,  95  111.  485;   Grote  v.  Pace, 

whole  estate  found  there  be  appropriated  71  Ga.  231;  40  N."  J.  Eq.   14;   Apple's 

to  domestic  creditors;     but   the   estate  Estate,  66  Cal.  432 ;  96  N.  C.  139. 
found  there  is  to  be  so  far  disposed  of,  ^  Mr.  Justice  Story  declares  that  this 

as  far  as  practicable,  that  all  creditors  universal    doctrine  was    formerly  much 

of  the  deceased,  there  and  elsewhere,  contested.     Story  Confl.  Laws,  §481. 

24 


PART    I.]  INTRODUCTION.  §    I7 

pronounced  advantageous  as  well  as  just  for  each  independent 
sovereignty  to  respect  a  decedent's  disposition  of  his  own 
surphis  of  personal  estate,  and  to  permit  one  rule  to  regulate 
its  beneficial  distribution  ;  and  no  prejudice  to  the  rights  of 
the  sovereignty  or  its  citizens  follows  the  pursuance  of  such 
a  course.^ 

It  has  been  observed,  however,  that  the  local  law  does  not, 
in  such  instances,  give  way  to  the  law  of  the  foreign  coun- 
try ;  but  rather  adopts,  as  part  of  its  own  law,  the  doctrine 
that  distribution  of  the  surplus  of  personal  property  shall  be 
according  to  the  law  of  the  owner's  last  domicile.^  The  law 
of  the  last  domicile,  as  it  stands  at  the  time  of  an  intestate's 
death,  is  taken  by  the  local  courts  ;  with  a  liberal  discretion, 
however,  as  to  the  true  interpretation  of  that  law,  and  a  dis- 
position to  disregard  retrospective  changes  therein  tending 
to  thwart  an  intestate's  genuine  purpose.^  And  the  special 
rights  of  a  widow,  too,  by  way  of  allowance  and  the  like, 
should  be  determined  by  the  law  in  force  at  the  death  of  her 
husband  in  the  place  of  his  last  domicile.^ 

§  17.  Conflict  of  Laws;  Rule  as  to  Execution  and  Validity  of 
Will. —  (4)  Furthermore,  and  from  similar  considerations,  the 
law  of  the  place  of  last  domicile  regulates  as  to  the  execution 
and  validity  of  wills  of  personal  property.  Wherever  local 
assets  may  be  found,  the  will  of  a  deceased  person,  in  order 

1  Lord  Hardvvicke  observes  in  Thome  14  Ch.   D.   619.     But  confiscation  and 

V.  Watkins,  2  Yes.  Sen.  37,  that  if  the  other  laws  passed  by  the  govfrninent  of 

rule    of   distribution  were  otherwise,  it  last  domicile  after  the  death  of  the  pcr- 

would  destroy  the  credit  of  the  public  son    cannot    on    any    just    principle    of 

funds;   for  no  foreigner  would  put  into  comity  be  respected  in  other   jurisdic- 

them  if  the  property  was  to  be  distrib-  tions;    the  law  at  the  time  of  death  fur- 

uted  differently  from  the  laws  of  his  own  nishing   the   true    criterion.     Lynch   v. 

country.  Paraguay,  L.  R.  2  P.  &  D.  268. 

The  rule  of  the  text  applies  as  to  the  -Doe   v.   Vardill,    5    B.  &  C.    452; 

ascertainment  of  the  person;  and  laws  Wms.  Exrs.  1516;    Lynch  v.   Paraguay, 

of  local  situs  as  to  primogeniture  yield,  L.  R.  2  P.  &  D.  268;    Wright  v.  Phil- 

where  personal   property   is  concerned,  lips,  56  Ala.  69;    76  Ala.  441. 
to  the  law  of  the  place  of  last  domicile.  ^  lb. 

Story    Confl.    Laws,   §    481;  Crispin    v.  *  Leib  f.  Wilson,  51  Ind.  550;  Mitch- 

Doglioni,  3  Sw    &  Tr.  98;  s.  C.  L.  R.  I  ell  v.  Word,  6463. 208;  Taylor  f.  Pettus, 

H.  L.  301.     See  Goodman's  Trusts,  in  52  Ala.  287. 
re,  L.  R.  17  Ch.  D.  266,  reversing  L.  R. 

25 


5    1 7  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

to  Operate  thereupon,  must  have  conformed  to  the  law  in 
force  where  he  had  his  last  domicile,  and  must  be  there  enti- 
tled to  probate.^  And  the  law  of  one's  last  domicile  not  only 
decides  what  constitutes  one's  last  will,  but  whether  one  died 
testate  in  point  of  fact  or  intestate  ;  ^  so  that  execution,  with 
all  the  formalities  required  in  the  country  where  the  person- 
alty is  situated,  cannot  of  itself  give  one's  instrument  the 
force  of  a  valid  testamentary  disposition.  All  questions  as  to 
the  forms  and  solemnities  attending  a  due  execution  are 
therefore  to  be  referred  to  the  place  of  last  domicile.^ 

As  a  corollary  of  our  main  proposition,  it  may  be  stated 
that,  if  one  makes  a  will,  valid  by  the  law  of  the  place  where 
he  is  domiciled,  and  afterwards  changes  his  domicile  to  a 
place  by  whose  laws  such  a  will  is  invalid,  and  there  dies,  the 
will  cannot  operate.*  Nevertheless,  should  he  move  back 
from  the  latter  domicile  to  the  former  before  his  death,  with 
his  resumption  of  the  domicile  where  the  will  was  made,  the 
will  itself,  as  it  is  considered,  revives  also.^  And  it  would 
appear  that,  apart  from  statute,  the  validity  and  effect  of  a 
will  of  personal  property  must  be  determined  according  to 
the  law  in  force  at  the  time  the  will  becomes  operative :  that 
is  to  say,  when  the  person  dies  who  made  that  will.^ 


1  Craigie  z'.  Levvin,  3  Curt.  435 ;  Hare  Wms.  Exrs.   372,  and  Perkins's    note; 

V.   Nasmyth,    2    Add.    25;     Crispin   v.  Story  Eq.  Jur.  §  1068. 

Doglioni,  3  Sw.  &  Tr.  96;   s.  c.  L.  R.  i  ^  Schultz   v.   Dambmann,    3    Bradf. 

H.   L.    301 ;     Grattan   v.   Appleton,    3  Sur.  379;     Story  Confl.    Laws,    §  465. 

Story,  755;     4  Kent   Com.    513,    514;  The  authority  of  the   executor   named 

Harrison  v.  Nixon,  9  Pet.  483;    Crofton  in  the  will  must  be  determined  accord- 

V.  Ilsley,  4  Greenl.    139;    Story  Confl.  ing  to  the  law  of  the  testator's  last  dom- 

Laws,  §§  465-468;    Stanley  v.  Bernes,  icile.     Laneuville  v.  Anderson,  2  Sw.  & 

3  Hagg.  374.  Tr.  24;   Oliphant,  in  re,  30  L.  J.  N.  S. 

^  Moultrie   v.   Hunt,   23  N.  Y.  394.  Prob.  82. 
But  as  to  regarding  foreign  rules  of  evi-  ■*  Dupuy  v.   Wurtz,    53   N.  Y.    556; 
dence  in  establishing  a  will,  some  quali-  Story  Confl.  Laws,  §  473,  citing  J.  Voet 
fication  of  the  rule  may  be  needful.    See  and  other  continental  authorities. 
Story  Confl.  Laws,  §§  260,  634,  636,  and  '"  Story  Confl.  Laws,  §  473. 
cases   cited.     Foreign    laws  are   to   be  ^  Trotter  v.  Trotter,  4    Bligh  N.  S. 
proved  as  facts,  and  the  question  of  their  4502;     Laneuville  v.  Anderson,   3  Sw. 
existence  and  interpretation  devolves  in  &  Tr.  24;     Harrison  v.  Nixon,  9  Pet. 
a  measure  upon  the  local  tribunal,  ac-  483;   De  Peyster  i^.  Clendining,  9  Paige, 
cording   to    the    circumstances   of    the  295;   Story  Confl.  Laws,  §  479;    Law- 
case   and   the   proof    accessible.      lb.;  rence  v    Hebbard,  I   Bradf.  Sur.  252; 

26 


PART  I.]  IN  ruonucTioN.  §  19 

§ 

or  Administrator.  —  (5)  111  general,  the  laws  of  the  State  or 
country  in  which  an  appointment,  principal,  or  ancillary  is 
made,  govern  as  to  the  accountability  of  the  executor  or 
administrator  for  assets  therein  received,  and  the  faithful  01 
unfaithful  discharge  of  his  duties.^ 

§  19.  Conflict  of  Laws  ;  Personal  and  Real  Estate  contrasted; 
Situs  prevails  as  to  Real. —  (6)  Administration  and  wills,  how- 
ever, have  reference  thus  to  movables  or  personal  property. 
As  concerns  the  transmission  of  real  estate,  and  rights  and 
formalities  of  title  thereto,  the  law  of  local  situation  in  gen- 
eral prevails  instead.  Hence,  the  rule  that  a  will  of  real  estate 
or  of  fixed  and  immovable  property  must  be  governed  by 
the  law  of  local  situation,  and  can  only  operate  so  far  as  it 
conforms  to  that  law.^  And,  on  the  other  hand,  if  there  be  no 
will  thus  operative  to  transmit  the  title,  the  descent  of  such 
real  estate  or  immovable  property  must  be  in  accordance  with 
the  law  of  that  local  jurisdiction.  The  court  of  one  State  or 
sovereignty  has  no  inherent  power  to  order  lands  to  be  sold  in 
another  State  or  sovereignty,  or  to  control  the  title  thereto.^ 

The  law  of  local  situation  may  determine  the  character 
of  property  in  this  connection,  as  being  real  or  personal.* 
Nevertheless,  comity  respects  the  law  of  testamentary  domi- 
cile so  far  as  to  enable  property  to  go  in  the  one  character 


Gushing  v.  Aylwin,  12  Met.  169.     But  v.  Titconib,  22  Me.  303;    Robertson  v. 

see  Kurtz  v.  Saylor,  20  Penn.  St.  205,  Pickrell,  109  U.  S.  608;    38  N.  J.  Eq. 

that   capacity  to  mal^e  a  will  is  deter-  516;   CroUy  v.  Clark,  20  Fla.  849.     In 

mined  by  the  law  as  it  existed  when  the  the  title  of  a  mortgage  upon  land  the 

will  was  made.     And  see  post  as  to  stat-  local  administrator  has  been  preferred 

ute  changes,  §  20.  to  one  appointed  in  the  State  where  the 

1  Partington  v.  Attorney  General,  L.  mortgagee  died.   Reynoklsi^.  McMulien, 

R.  8  H.  L.  ICO,  119;    Kennedy  v.  Ken-  55  Mich.  568.     Cf.  36  Kan.  7.'j\;   Clark 

nedy,  8  Ala.  391  ;   Fay  z/.  Haven,  3  Met.  v.    Blackington,    no    Mass.  369.     The 

109;    Lawrence  v.   Elmendorf,  5   Harb.  local  court  claims  the  right  to  construe 

73;   Marrion  v.  'i'itsworth,  18  B.  Mon.  a  devise  of  local  lands.     McCartney  v, 

582.      As    to   the   efteet   of    a   foreign  Osburn,  118  111.  403. 
appointment  see  />osi,  Part  II.  ^  Boyce  v.  Grundy,  9.  Pet.  275. 

-  Story  Confl.  Laws,  §  474;   Bovey  z/.  *  Story  Confl.  Laws,  §  447;    Chap 

Smith,  I  Vern.  85;   4  Kent  Com.  513;  man  v.  Robertson,  6  Paige,  630. 
Kerr  v.  Moon,  9    Wheat.  565;    Potter 

27 


§  20  EXECUTORS    AND    ADMINISTRATORS.  [PART    I, 

or  the  other,  as  the  testator  obviously  intended.^  Very 
embarrassing  questions  may  arise  where  real  and  personal 
estate  are  so  combined  in  the  same  will  that  the  laws  ol  dif- 
ferent sovereign  jurisdictions  must  be  applied.^ 

§  20.  Conflict  of  La'wrs ;  General  Rules  varied  by  Treaty, 
Statute,  etc.  —  (7)  The  general  rules  of  cgmity  which  we  have 
set  out  may  be  found  varied  by  treaty  stipulations  or  by  pro- 
visions otherwise  so  incorporated  with  the  law  of  the  place 
of  last  domicile  as  to  introduce  a  different  principle  for  the 
case  in  hand  from  those  above  announced.  The  law  of  last 
domicile  for  instance  is  to  be  construed  with  all  its  appropri- 
ate and  just  qualifications  consistent  with  the  equal  dignity  of 
nations.  Thus,  if  an  English-born  subject  dies  domiciled  in 
Belgium,  and  the  Belgian  law  has  prescribed  a  rule  of  suc- 
cession for  such  persons,  differing  from  that  of  natural-born 
subjects  of  Belgium,  English  courts  will  give  that  exception 
effect  if  beneficial,  even  though  its  consequence  be  to  estab- 
lish a  testamentary  disposition,  valid  in  form  according  to  the 
laws  of  England,  but  invalid  according  to  the  general  law  of 
Belgium  ;  ^  and  on  the  other  hand  a  sovereignty  may  correct, 
where  opportunity  offers,  the  injustice  attempted  by  another 
sovereignty  towards  its  own  subjects. 

While,  again,  the  general  rule  of  comity  refers,  as  we  have 
seen,  the  validity  of  a  last  will  of  personal  property  and  ques- 
tions of  due  execution,  to  the  place  of  last  domicile,  various 
modern  statutes  show  more  indulgence  to  the  testator,  who 
otherwise  might  inadvertently  by  changing  his  domicile  after 
once  making  a  perfectly  valid  will  render  that  will  inopera- 
tive and  die  literally  intestate  in  consequence.*  Thus,  the 
English  statute  24  &  25  Vict.  c.  114,  provides  that  wills  made 
by  British  subjects  out  of  the  kingdom  shall  be  admitted  to 

1  Enohin  v.  Wylie,  10  H.  L.  Cas.  I;  3  Curt.  231.  The  foreign  rule  in  these 
Jerningham  v.  Herbert,  4  Russ.  388.  instances  prescribed  in  effect  for  Eng- 

'■^  Story    Confl.    Laws,    §§    485-489;  lish-born  subjects  domiciled  there  that 

Brodie  v.  Barry,  2  Ves.  &  Beam.   130,  the  succession  to  personal  estate  should 

per  Sir  Wm.  (jrant.  be  governed  by  English  law. 

2  Collier  v.  Rivaz,  2  Curt.  855 ;  Wms.  ■*  See  Dupuy  v.  Wurtz,  53  N  Y.  556; 
Exrs.  368.    And  see  Maltass  v.  Maltass,  Story  Confl.  Laws,  §  473;  supra,  §  17. 

28 


I 


PART    I.]  INTRODUCTION.  §  21 

probate,  if  made  according  to  the  law  of  the  place  where 
made,  or  where  the  testator  was  domiciled  or  had  his  domicile 
of  origin.^  So  in  Massachusetts  and  some  other  American 
States,  it  is  now  provided  that  a  will  made  out  of  the  State, 
which  is  valid  according  to  the  laws  of  the  State  or  the  coun- 
try in  which  it  is  made,  may  be  proved  and  allowed  with  the 
same  effect  as  if  executed  according  to  the  law  of  the  State.''^ 

In  further  extension  of  the  general  right  of  testamentary 
disposition,  the  English  statute,  24  &  25  Vict.  c.  114,  enacts 
that  wills  made  by  British  subjects  within  the  United  King- 
dom (whatever  the  domicile  of  such  person  at  the  time  of 
such  execution  or  at  the  date  of  decease)  shall,  as  regards 
personal  estate,  be  considered  as  well  executed  and  admis- 
sible to  probate,  if  executed  according  to  the  forms  in  force 
for  the  time  being  at  the  place  of  execution ;  and  that  no 
will  or  other  testamentary  disposition  shall  be  held  to  have 
become  invalidated  or  its  construction  altered  by  reason  of 
any  subsequent  change  of  the  testator's  domicile.^  So,  in 
some  parts  of  the  United  States,  it  is  provided  by  local 
statute  that  a  will  made  and  executed  in  conformity  with 
the  law  existing  at  the  time  of  its  execution  shall  be 
effectual.'* 

The  legislation  of  certain  States,  moreover,  in  derogation 
of  general  rules,  expressly,  or  by  apparent  intendment,  per- 
mits a  will  which  has  been  duly  executed  in  another  State  or 
country  to  operate,  if  effectual  at  all,  upon  real  estate  as  well 
as  personal,  within  the  jurisdiction  of  local  situs} 

§21.  Last  Domicile :  •what  this  is ;  Residence,  Inhabitancy.  — 
Domicile  is  a  word  not  easily  defined  with  precision.    It  would 

1  This  statute  operates  upon  the  wills  mont  as  to  a  will  of  personalty  duly  pro- 
of British  subjects  dying  after  August  6,  bated  where  one  died  and  left  assets, 
1861.     Wms.  Exrs.  374.  though  the  domicile  was  Vermont.     Ives 

^  Mass.  Pub.  Stats,  c.   127,  §  5.     A  v.  Salisbury,  56  Vt.  565. 
will  thus  executed,  which  revokes  a  for-  *  Act  24  &  25  Vict.  c.  114,  §§  2,  3; 

mer   will,  comes    within    protection   of  Wms.  Exrs.  374;   Reid,  in  re,  L.  R.  i 

this  statute.     Bayley  v.  Bailey,  5  Cush.  P.  &  D.  74. 

245.     And  so  does  a  nuncupative  will,  *  Mass.  Pub.  Stats,  c.  127,  §  4. 

valid  where  executed,  though  invalid  if  ^  See  Mass.  Pub.  Stats,  c.  92,  §§4-15; 

executed  in  Massachusetts.    Slocomb  v.  Shannon  v.  Shannon,  III  Mass.  331. 
Slocomb,  13  Allen,  3S.    And  see  in  Ver- 

29 


§   21  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

appear  that  the  Roman  and  civil  jurisprudence  laid  stress 
upon  one's  place  of  business  as  well  as  his  domestic  resi- 
dence ;  but  the  common  law  has  fixed  the  domicile  mainly 
from  regard  to  one's  home  and  the  place  where  he  exercises 
political  rights.  Domicile  may  be  viewed  as  national  or 
domestic :  the  one  having  reference  to  the  person's  country 
or  sovereignty ;  the  other  to  a  political  subdivision  thereof, 
such  as  the  county.  It  is  the  latter  which  determines  the 
taking  of  jurisdiction  as  between  probate  county  courts  ;  but 
the  former,  when  international  rules  are  under  discussion.^ 
The  bias  of  the  courts  is  found  to  differ  in  these  two  classes 
of  cases  ;  for,  in  the  latter  class,  the  domestic  forum  of  last 
resort  sits  as  umpire,  while  in  the  other  there  is  no  umpire, 
and  nothing  is  yielded  except  it  be  in  the  spirit  of  comity. 
Moreover,  a  change  of  domicile  in  the  one  instance  involves 
conformity  to  a  new  and  independent  system  of  laws,  while 
in  the  former  it  does  not.  In  the  United  States,  the  law  of 
domicile  develops  still  greater  perplexities  ;  for  there  is  the 
national  domicile,  which,  however,  is  little  concerned  with 
the  estates  of  deceased  persons ;  the  state  domicile,  which, 
for  most  practical  purposes,  is  sovereign  in  this  connection  ; 
and  the  domestic  or  county  domicile. 

Domicile  may  be  regarded,  in  our  common-law  sense,  as 
the  place  where  one  has  his  true,  fixed,  and  permanent  home 
and  principal  establishment,  and  to  which,  whenever  he  is 
absent,  he  has  the  intention  of  returning.^  And  one's  last 
domicile  —  the  prime  fact  upon  which  turn  those  legal  issues 
involved  in  the  administration  and  settlement  of  his  estate 
—  is  taken  to  be  his  fixed  and  permanent  home  at  the  time 
of  his  decease.  Every  one  has  a  domicile  ;  and  the  elements 
which  establish  that  domicile  are  more  easily  conceived  by 
the  common  mind  than  reduced  to  a  close  legal  analysis. 
"No  exact  definition  can  be  given  of  domicile,"  observes 
Shaw,  C.  J.  ;  "  it  depends  upon  no  one  fact  or  combination  of 
circumstances,  but,  from  the  whole  taken  together,  it  must 
be  determined   in   each  particular  case."  ^     Domicile  is  im- 

'  2    Kent  Com.   449 ;    Story  Confl.         ^  Bouv.  Diet.  "  Domicile." 
Laws,  §§  39  etseq.,  42.  ^  Thorndike  v.  Boston,  I  Met.  245. 

30 


PART    I.]  INTRODUCTION.  §   21 

pressed  upon  the  new-born  child  by  birth,  and  upon  the  wife 
by  her  marriage  ;  the  domicile  of  the  child  follows  that  of  its 
parents,  and  the  domicile  of  the  wife  follows  that  of  her  hus- 
band. Any  i^erson  sui  juris,  however,  may  make  a  Inuid  fide 
change  of  domicile  at  any  time.  Nevertheless,  one's  original 
domicile  continues  until  another  is  acquired  with  a  genuine 
full  and  free  intention  of  making  it  one's  permanent  home.^ 

Legal  residence  or  inhabitancy  is  often  used  in  our  local 
legislation  as  though  synonymous  with  domicile ;  but  these 
terms  are  not,  strictly  speaking,  convertible.  One  may  un- 
questionably be  absent  from  his  domicile  ;  and  he  may  reside 
or  inhabit  elsewhere  for  sundry  reasons  of  health,  comfort, 
business,  recreation,  temporary  convenience,  and  the  like, 
without  abandoning  his  former  domicile ;  for  the  law,  espe- 
cially in  considering  the  national  or  sovereign  domicile,  favors 
the  presumption  of  an  intended  continuance  of  the  same 
domicile,  and,  even  if  the  domicile  has  changed,  treats  it  as 
revived  on  an  intention  to  return.  But  a  residence  or  inhab- 
itancy, originally  temporary  and  intended  for  a  limited  period, 
may  afterwards  become  general  and  unlimited  in  its  charac- 
ter. In  all  such  connections  the  intention  of  the  person 
must  be  studied  throughout  in  the  light  of  consecutive  events. 
Such  intention  is  manifested  from  conduct  and  circumstances, 
and  not  from  words  alone  ;  intention  may  change  ;  and  when 
the  two  things  concur,  the  fact  of  a  changed  residence,  and 
the  intention  of  remaining  there,  or  at  least  of  never  return- 
ing to  the  former  domicile,  the  domicile  is  legally  changed. 
This  change  must,  however,  have  occurred  from  one's  choice 
and  voluntarily. 2 

Domicile  of  origin  is  the  first  and  fundamental  domicile  ; 

^  Bouv.  Diet.  "  Domicile  ";  Oilman  v.  upon  the  intention  to  remain  in  the  new 

Gilman,52  Me.  165;  Story  Confl.  Laws,  §  place  for  a  definite  or  indetinite  period, 

45 ;  Wnis.  Exrs-  1 5 1 7,  and  Perkins's  note,  as  upon  its  heing  without  an  intention  to 

'■^  Bouv.  Diet.  "Domicile";    Udny  v.  return.     But  Lord  Westbury  sjieaks  of 

Udnv,  L.    R.   I    H.    L.  Sc.  458;   Story  the  inference  which  the  law  derives  from 

Confl.  Laws.  §  45  ;   Wilbraham  v.  Lud-  the  fact  of  a  man  fixing  voluntarily  his 

low,  99  Mass.    587;    Krone  v.  Cooper,  sole  or    chief  residence  in  a  particular 

43  Ark.   547;    Huldane  f.    Eckford,  L.  place,   with  an  intention  of  continuing 

R.  8    Eq.    640.     See  Colt,  J.,  in  Hal-  to  reside  there  "  for  an  unlimited  time." 

let?'.  Bassett,  lOO  Mass.  170,  that  chmge  L.  R.  i  H.  L.  Sc.  458.     And  see  King 

of  domicile  does  not  depend  so  much  v.  Foxwell,  L.  R.  3  Ch.  D.  518. 

31 


§   22  EXECUTORS    AND    ADMIN'ISTRATORS.  [PART    I. 

though  perhaps  as  against  the  domicile  of  choice,  more  stren- 
uously insisted  upon  in  Enghsh  than  in  American  practice, 
and  where  the  conflict  is  international  than  where  it  is  inter- 
state. One  may  change  his  domicile  of  origin  by  choosing 
and  fixing  his  domicile  elsewhere,  with  the  intention  of  there 
continuing  and  never  returning.  But  while  American  cases 
appear  to  favor  a  change  of  domicile  according  to  one's  choice, 
as  long  as  he  lives,  if  it  be  merely  from  State  to  State,  or 
from  county  to  county,  the  English  authorities  appear  to  keep 
the  domicile  of  origin  strongly  in  view  for  doubtful  emergen- 
cies, and  to  hold  that  the  abandonment  of  an  acquired  domi- 
cile ipso  facto  restores  the  domicile  of  origin.  The  application 
of  such  a  rule,  however,  appears  chiefly  confined  to  cases  of 
natural-born  Englishmen,  breaking  up  establishments  in  a 
foreign  land.^ 

§  22.  Last  Domicile;  applied  to  the  Subject  of  Administration. 
—  Were  the  question  of  one's  domicile  raised  only  while  he 
was  living,  it  would  be  comparatively  easy  for  his  intention 
to  be  established  ;  and  in  portions  of  the  United  States,  where 
a  party  in  interest  is  allowed  to  give  his  own  testimony,  one's 
simple  statement  of  his  purpose,  if  not  inconsistent  with  the 
proven  facts,  will  often  remove  all  doubt  on  such  an  issue  ;  as 
where,  for  instance,  the  case  relates  to  taxation.  But  death 
leaves  the  question  of  last  domicile  to  be  chiefly  inferred 
from  extraneous  facts  and  circumstances  ;  each  probate  tri- 
bunal, moreover,  which  is  asked  to  take  jurisdiction  upon  a 
dead  person's  estate,  naturally  inclines  to  do  so,  and  to  con- 
strue all  legal  doubts  in  its  own  favor.  In  such  a  controversy, 
the  presumption  that  one  domicile  sh.dl  prevail  until  another 
has  been  bond  fide  and  voluntarily  acquired  in  its  stead,  should 
be  allowed  great  weight ;  and,  more  especially,  if  to  concede 
a  change  thereof  is  to  concede  that  the  person  intentionally 
expatriated  himself  and  fixed  his  residence  in  another  country, 
where  opposing  systems  of  laws  must  of  necessity  define  the 

1  See  expressions  of  Lord  Chelmsford,  Wms.  Exrs.  1521,  note;  King  v.  Fox- 
Lord  Westbury,  and  others  in  Udny  57.  well,  L.  R.  3  Ch.  D.  518,  /^r  Jessel, 
Udny,  L.   R.   i    H.  L.   Sc.  App.  441;     M.  R. 

32 


PART    I.]  INTRODUCTION.  §  23 

rights  of  succession.  For  it  is  a  general  maxim  that,  though 
one  may  have  two  domiciles  for  certain  purposes,  he  can  have 
only  one  for  the  purpose  of  succession.^ 

§23.    Last  Domicile ;   Death -while  on  Transit,  etc.  —  The  rule 

of  last  domicile  disregards  the  locus  of  death,  if  the  death 
occurred  on  transit,  or  otherwise  at  a  distance  from  one's 
home.  Thus,  in  case  one  dies  while  travelling  abroad,  the 
foreign  country  should  take  no  jurisdiction,  unless  it  be  an- 
cillary merely  and  founded  upon  the  possession  of  property 
which  he  has  there.^  In  this  country  it  has  been  held  that, 
where  a  citizen  removed  from  one  State,  with  his  family,  to 
settle  in  another  distant  one,  and  died  on  the  route,  his  family 
continuing  the  journey  afterward,  with  the  property  belong- 
ing to  the  estate,  letters  of  administration  might  well  be 
granted  in  the  place  of  destination,  or  where  the  family  lo- 
cated ;^  and,  according  to  the  more  reasonable  opinion,  unless 
the  person  removing  had  reached  his  intended  new  domicile, 
so  that  the  fact  of  a  changed  residence  and  the  intention  of 
changing  concurred,  the  status  of  distribution  and  of  testacy 
should  be  rather  according  to  the  law  of  the  domicile  he  left, 
as  the  true  locus  of  a  last  domicile.^ 

Questions  of  this  character  are,  however,  seldom  raised 
with  reference  to  administration  ;  and  the  courts  of  a  State 
or  country  do  not  appear  unwilling  to  maintain  the  domestic 
sovereign  jurisdiction  to  grant  letters  upon  the  estate  of  a 
decedent  where  it  appears  convenient  to  do  so,  provided  some 
claim  may  be  set  up  that  the  last  domicile  or  residence  was 
within  such  limits  ;  or,  if  a  jurisdiction  can  be  founded  upon 
the  locality  of  assets.^     Under  our  statutes  relating  to  admin- 

1  Somerville  v.  Somerville,  5  Ves.  Ormond,  J.  Perhnps,  if  the  domicile 
786  ;  Crookenden  v.  Fuller,  i  S\v.  &  left  were  an  acquired  d(jmicile,  the  dom- 
Tr.  441;  Green  v.  Green,  11  Pick.  410;  icile  of  origin  would  revive.  This  is  the 
Wms.  Exrs.  1518,  and  Perkins's  note;  English  theory.  See  Lyall  v.  P.iton,  25 
2  Kent  Com.  431.  L.  J.  Ch.  746;   Udny  v.  Udny,  L.  R.   I 

2  See  Aspinwall  v.  Queen's  Proctor,  H.  L.  Sc.  458.  In  Olson's  Will,  63 
2  Curt.  241.  Iowa,    145,  a  man,  after  roaming,  was 

8  Burnett  v.  Meadows,  7  B.  Mon.  277.  held   to  have  settled    down    where    he 

And  see  George  v.  Watson,  igTex.  354;  died. 

Briggs  V.  Rochester,  16  Gray,  337.  6  ^s    to    jurisdiction    founded    upon 

■*  State   V.    Hallett,   8   Ala.    159,  per  locality  of  property,  see  next  section. 

33 


§  24  EXECUTORS    AND    ADMINISTRATORS.  [pART    I. 

istration,  the  word  "  domicile  "  is  not  alone  employed  ;  but 
local  jurisdiction  may  be  determined,  to  use  the  express  words 
of  various  local  enactments,  by  the  last  "residence"  of  the 
intestate,  if  he  have  one  {or  the  place  where  he  was  last  an 
"inhabitant  ")  ;  or,  if  he  have  no  such  residence,  etc.,  then  by 
the  place  of  his  death. ^ 

§  24.  Locality  of  Personalty  or  Bona  Notabilia  may  confer 
Jurisdiction,  aside  from  Domicile  ;  Questions  of  Double  Jurisdic- 
tion. —  Last  domicile  affords  the  suitable  principal  forum  for 
procuring  credentials  of  authority  and  settling  the  estate  of  a 
deceased  person.  But  inasmuch  as  the  collection  of  credits 
and  effects,  the  payment  of  debts,  the  distribution  of  the 
residue,  and  the  final  settlement  of  the  estate,  are  of  universal 
convenience,  the  courts  of  one  country  or  State  do  not  feel 
compelled  to  wait  until  those  of  another  have  acted,  nor  to 
submit  domestic  claims  to  foreign  jurisdictions ;  but,  aside 
from  the  deceased  person's  last  domicile  and  a  principal 
probate  appointment,  a  competent  local  and  ancillary  ap- 
pointment is  procurable,  on  the  suggestion  that  property 
requiring  administration  lies  within  the  local  jurisdiction. 
In  other  words,  locality  of  personalty  belonging  to  the  estate 
of  a  deceased  person  may  confer  a  local  probate  jurisdiction 
regardless  of  the  consideration  of  his  last  domicile.  This 
general  doctrine  is  amply  recognized  in  the  statutes  of  Eng- 
land and  the  several  United  States  which  relate  to  probate 
jurisdiction.^ 

So,  too,  within  the  same  national  or  sovereign  jurisdiction, 
the  locality  of  personal  property  may  afford  in  various  in- 
stances occasion  for  probate  jurisdiction  in  two  or  more  local 
courts  ;  as  where  one  dies  intestate,  being  domiciled  abroad, 


^  See  Burnett  v.  Meadows,  7  B.  Mon.  ancillary  appointments.     "  The  propo- 

277,  278.     Under  the  Kentucky  statute  sition,  that  the  courts   of  that   country 

referred  to  in  this  case,  administration  only  in  which  a  testator  dies  domiciled 

where  the  intestate  had  no  residence  was  can   administer  his   personal  estate,  is 

to  be  determined  by  the  place    of   his  without    support    from    any  authority," 

death  or  the  county  wherein  his  estate  except  certain  dicta  of  Lord  Westl)ury 

or  the  greatest  part  thereof  might  be.  in  H.  L.  C.  i,  which  are  disapproved. 

2  See  post.  Part  II.,  as  to  foreign  and  Ewing  v.  Ewing,  9  App.  Cas.  34,  39. 

34 


PART    I.]  INTRODUCTION.  v^  24 

and  leaves  effects  in  the  county  of  A  and  the  county  of  B.^ 
In  England,  prior  to  the  enactment  of  statute  20  &  21  Vict. 
c.  yy,'^  questions  of  conflicting  jurisdiction  might  arise  where 
one  died  leaving  l^o/ia  notabilia,  or  notable  goods,  of  ^5  value 
or  more,  in  different  dioceses.^  But  a  convenient  rule,  sanc- 
tioned by  statute  in  some  American  States,  is  that  when  a 
case  lies  within  the  jurisdiction  of  the  probate  court  in  two 
or  more  counties,  the  court  which  first  takes  cognizance 
thereof  by  the  commencement  of  proceedings  shall  retain 
the  same ;  and  administration  first  granted  shall  extend  to  all 
the  estate  of  the  deceased  in  the  State,  and  exclude  the  juris- 
diction of  the  probate  court  of  every  other  county.* 

Debts  due  the  deceased  may  be  deemed  bona  notahilia,  i.e., 
personalty  suitable  for  conferring  a  local  probate  jurisdiction.^ 
And  the  rule  is  that  judgments  are  bona  notabilia  where  the 
record  is,  specialties  where  they  happen  to  lie,  and  simple 
contract  debts  where  the  debtor  (not  the  creditor)  resides, 
and  where  they  can  be  sued  upon.°  Interest  in  insurance 
money  is  assets,  conferring  a  local  jurisdiction  to  appoint.'^ 
So  is  any  chose  in  action  or  money  right,  this  being  personal 
property  and  assets.^  Modern  kinds  of  incorporeal  personal 
property  may  furnish  disputes  as  to  their  locality  for  such  a 
purpose,  which  the  courts  have  not  as  yet  clearly  settled. 
But  where  the  personal  property  consists  of  a  debt  owing 
upon  some  security  or  document  of  title,  which  of  itself  is 
commonly  transferable  as  possessing  a  mercantile  value,  the 


^  lb.  domicile  when  left  there  at  the  time  of 

2  i.e..  Probate  Court  act.     See  supra,  the  decedent  holder's  death.     Goodlett 
§  14.  V.  Anderson,  7  Lea,  2S6.     As  to  United 

3  Wms.  Exrs.  289,  290.  States  bonds  deposited  for  safe  keeping 
*  Mass.  Gen.  Stats,  c.  117,  §  3.  by  a  citizen  of  another  State,  upon  a 
s  A  bond  fide  claim   of  the  deceased  special  certificate  of  deposit  transferable 

will  sustain  the  jurisdiction,  even  though  by    indorsement,    see    .Shakespeare    v. 

it  should  appear  after  the  letters  were  Fidelity  Insurance  Co.,  97  Penn.  St.  173. 

issued  that  the  claim  was  invalid.     Sul-  '  Butson,  Re,  9  L.  R.  Ir.  21 ;    IIol- 

livan  V.  Fosdick,  17  N.  V.  Supr.  123.  yoke  v.  Mutual  Life  Ins.  Co.,  29  N.  V. 

^  Attorney  General  v.  Bouwens,  4  M.  Supr.    75 ;    Wyman    v.    Ilalstead,    109 

&  W.   191 ;  Vaughan  v.  Barrett,  5  Vt.  U.  S.  654. 

333;   Pinncy  v.  McGregory,  102  Mass.  ^  Murphy  w.  Creighton,  45  Iowa,  179; 

\%(i,  per  Gray,  J.     Negotiable  notes  are  Fo.\  v.  Carr,  16  Hun  (N.  V.)  434. 
bona  notabilia  in  the  jurisdiction  of  last 

35 


§  24  EXECUTORS    AND    ADMINISTRATORS.  [PART    I. 

local  situation  of  such  security  or  document  of  title  would,  in 
various  instances,  be  well  held  to  confer  a  probate  jurisdic- 
tion, as  of  botia  notabilia,  apart  from  the  obligor's  or  debtor's 
place  of  residence ;  as  where,  for  instance,  a  savings-bank 
book,  coupon-bond,  certificate  of  stock,  or  perhaps  a  promis- 
sory note  were  left  lying  in  another  jurisdiction. ^  However 
this  may  be  (and  the  inclination  of  each  State  or  country  is 
to  uphold  its  own  jurisdiction),  a  jurisdiction  founded  upon 
the  place  where  the  obligation  is  enforceable  is  still  sustained, 
whether  as  concurrent  or  exclusive ;  thus  shares  of  stock 
are  held  bona  notabilia  in  the  county  and  State  where  the 
stock  books  are  kept  and  dividends  paid.^  Cash,  furniture, 
and  corporeal  chattels  are  of  course  bojia  notabilia  where 
they  lie.^ 

If  an  assignment  be  given  as  collateral  security  for  a  debt 
of  the  assignor,  the  debt  is  the  asset,  and  the  assignment  only 
incident.  If  an  assignment  be  absolute,  it  should  be  regarded 
only  as  a  muniment  of  title  which  follows  the*  sittis  of  the 
specialty  or  other  thing  assigned.  And  so,  as  it  is  said,  of  a 
corporeal  chattel ;  a  bill  of  sale  transferring  that  chattel  fol- 
lows the  sittis  of  the  chattel  as  the  thing  happens  to  lie.* 

Wherever  the  local  statute  has  prescribed  a  jurisdiction 
without  limitation  of  value,  articles  or  money  rights  of  trifling 
consequence  will  uphold  the  local  part  of  administration.^ 
But  it  is  assumed  that  the  thing  was  left  or  found  in  the 
local  jurisdiction  so  as  to  call  bond  fide  for  the  gVant,  and  has 
not  been  brought  from  elsewhere  for  the  purpose  of  giving 

^  Beers  v.   Shannon,   73  N.  Y.  292.  v.  Anderson,  7  Lea,  286.     And  see,  as 

As  to  negotiable  notes,  see,  also.  Good-  to  a  mortgage  note  where  the  note  and 

lett  V.  Anderson,  7  Lea,  286 ;    hut  cf.  its  security  are  enforced   in  a   certain 

Owen  V.  Miller,  10  Ohio  St.  136.     The  jurisdiction,  Clark  v.  Blackington,   no 

rule  above  cited  in  the  text  is  a  very  old  Mass.  369,  373. 

one  that  specialty  debts  are  bona  nota-         **  A  folding-chair  is  property  sufficient 

bilia  where  the  bond  or  other  specialty  to    confer    a    jurisdiction,    2    Demarest 

is;   the  distinction  made  being  that  debt  (N.  Y.)  265. 

upon  simple  contract  follows  the  person         *  Holyoke  v.   Mutual   Life  Ins.  Co., 

of  the  debtor.     Cro.  Eliz.  472;   Swinb.  29  N.  Y.  Supr.  75,  77,  per  Gilbert,  J. 

pt.  6,  §  II.  ^Qt post.  Part  IL,  as  to  foreign  and  an- 

2  Arnold    v.    Arnold,    62    Ga.    627;  ciliary  appointments. 
Emery  w.  Hildreth,  2  Gray,  231 ;   Owen         ^  Emery   v.   Hildreth,   2  Gray,   231; 

V.  Miller,  10  Ohio  St.  136;   cf.  Goodlett  Wilkins  v.  Ellett,  108  U.  S.  256. 

.^6 


PART    I.]  INTRODUCTION.  v^   25^1 

falsely  a  colorable  and  pretended   jurisdiction   to  the  local 
court.  ^ 

5^  25.  The  Subject  continued;  -whether  Assets  brought  in  may 
confer  Jurisdiction.  —  The  rule  of  strict  construction  would 
seem  to  refer  the  locality  of  personalty  in  such  cases  to  the 
situs  as  existing  at  the  time  of  the  deceased  owner's  or  credi- 
tor's death.  Such  an  interpretation,  however,  is  too  narrow 
to  meet  the  practical  needs  of  a  probate  ajipointment  for 
local  purposes  in  modern  times  ;  an  appointment  which  per- 
haps may  not  be  invoked  for  years  after  one's  death.  Hence, 
for  the  welfare  of  creditors  and  other  interested  parties,  this 
right  of  local  appointment  is  more  liberally  asserted  in  many 
of  the  courts,  and  local  jurisdiction  is  upheld  on  the  ground 
that  bona  notabilia  exist  when  letters  are  applied  for,  notwith- 
standing the  goods  were  brought  into  the  country,  or  the 
debtor  removed  thither  subsequently  to  the  death  of  the 
owner  or  creditor  ;  ^  and  this  seems  the  better  opinion,^  unless 
such  bringing  in  or  removal  was  in  bad  faith,  and  with  the 
intention  of  conferring  improperly  a  colorable  probate  juris- 
diction. According  to  the  modern  current  of  opinion,  more- 
over, letters  of  administration  issued  from  a  court  of  competent 
authority  upon  the  estate  of  a  deceased  person  non-resident, 
will  be  presumed  in  all  collateral  proceedings  to  have  been 
properly  granted."* 

§  2  5(7.  The  Subject  continued;  Suits  for  Assets  oviring  by  a 
.Corporation.  —  "In  the  growth  of  this  country,"  observes  a 
recent  case,  "and  the  expansions  and  ramifications  of  busi- 

1  Wells  f.  Wells,  35  Miss.  638;  Suarez  been  sustained.  Fox  v.  Carr,  16  Hun 
V.  Mayor,  2  Sandf.  Ch.  173.  (X.  Y.)  434. 

2  See,  in  Pinney  v.  McGregory,  102  ^  But  cf.  Christy  v.  Vest,  36  Iowa, 
Mass.  186,  the  learned  opinion  pro-  285;  Goodlett  t/.  Anderson,  7  Lea,  286. 
nounced  by  Gray,  J. ;  Sir  John  NichoU  A  foreign  representative  who  conies 
in  Scarth  v.  Bishop  of  London,  I  Hagg.  within  another  jurisdiction,  bringing 
Ecc.  636.  The  debtor  having  volun-  assets  with  him,  may,  it  seems,  be  held 
tarily  come  to  another  State  for  a  tern-  to  account  in  chancery  as  a  trustee  for 
porary  purpose  after  the  decedent's  those  in  interest.  Billiard  v.  Harris,  2 
death,  the  right  to  appoint  an  ancillary  Tenn.  Ch.  196. 

administrator,    and    the    right    of    that         •*  Hobson  v.   Ewan,  62  111.  146;    Ap- 
administrator  to  sue  upon  the  debt,  has     pointmcnt.  Part  \\.,post. 

37 


§   26  EXECUTORS    AND    ADMINISTRATORS.  [pART    I. 

ness,  and  the  free  commercial  intercourse  between  the  States 
of  the  Union,  it  has  come  to  pass  that  large  numbers  of  life 
and  fire  insurance  companies  and  other  corporations,  estab- 
lished with  the  accumulated  capital  and  wealth  of  the  richer 
parts  of  the  country,  seek  business  and  contracts  in  distant 
States  which  open  a  large  and  profitable  field.  The  incon- 
veniences and  hardships  resulting  from  the  necessity  on  the 
part  of  creditors,  of  going  to  distant  places  to  bring  suits  on 
policies  and  contracts,  and  from  the  additional  requirement, 
in  case  of  death,  of  taking  out  letters  testamentary  or  of 
administration  at  the  original  domicile  of  the  corporation 
debtor,  in  order  to  sue,  has  led  to  the  enactment  in  many 
States  of  statutes  which  enable  resident  creditors  to  bring 
suits  there  against  corporations  created  by  the  laws  of  other 
States."  ^  The  reason  why  the  State  which  charters  a  cor- 
poration is  its  domicile  of  other  States  in  reference  to  debts 
which  it  owes,  is  because  there  only  can  it  be  sued  or  found 
for  the  service  of  process ;  but  this  is  now  changed  in  cases 
by  local  statutes  ;  and  federal  courts  hold  that  a  corporation  of 
one  State  doing  business  in  another  is  suable  in  the  federal 
courts  established  in  the  latter  State,  if  the  laws  of  that 
State  so  provide,  and  in  the  manner  those  laws  provide.^ 

§  26.  The  Subject  continued  ;  Right  of  Action  created  by  Local 
Statute  confers  no  External  Jurisdiction.  —  A  right  of  action 
created  by  statute  in  one  State  or  country  is  not  to  be  re- 
garded as  property  or  assets  which  can  confer  a  local  probate 
jurisdiction  in  another  State  or  country ;  as,  for  instance, 
where  the  representative  of  a  person  whose  death  was  caused 
by  the  wrongful  act  or  negligence  of  another  is  permitted 
contrary  to  the  common-law  rule  to  sue  and  recover  damages.^ 
If    the   local   statute   empowers    such   action   to    be    brought 

As  a  rule  there  cannot  be  two  valid  Watkins    v.    Adams,    32     Miss.     333. 

grants   of  administration   on  the   same  ^  Mr.    Justice    Blatchford    in    N.    E. 

estate  within  a  State  or  country  (or,  in  Mutual    Life   Ins.   Co.    v.    Woodworth, 

other  words,  within   the   same  general  III  U.  S.  138,  144. 

jurisdiction)  at  the  same  time.     But  see  2  ib..    Lafayette  Ins.  Co.   v.   Harris, 

statute  provision  for  the  instance  where  12  Wall.  65;   96  U.  S.  369;    104  U.  S.  5. 

the    assets     are    removed    to    another  •*  Illinois  Central  R.  v.  Crazin,  71  111. 

country,  etc.,  after  one's   appointment.  177. 

38 


PART    I.]  INTRODUCTION.  §  28 

against  a  railway  or  other  corporation,  it  may  be  said,  more- 
over, that  corporations,  being  local  to  the  State  or  country 
which  creates  them,  the  right  of  action  against  them  must  be 
local  to  the  same  State  or  country.^ 

§  27.  "Whether  Locality  of  a  Decedent's  Real  Estate  may  con- 
fer Jurisdiction.  —  Locality  of  real  estate  may  often  confer  a 
jurisdiction  to  appoint  an  administrator  in  various  American 
States.^  Thus,  it  is  held  in  Massachusetts  that  administra- 
tion may,  upon  the  petition  of  a  local  creditor,  be  granted  on 
the  estate  of  a  person  who  dies  a  resident  of  another  State, 
leaving  only  real  estate  in  Massachusetts  ;  notwithstanding 
his  general  estate  is  solvent,  and  an  administrator  has  been 
appointed  in  the  State  where  he  last  resided.^  Administra- 
tion may,  indeed,  be  granted  upon  the  basis  of  real  property 
alone,  consistently  with  the  policy  of  many  of  our  States.* 
For  the  local  policy  is,  while  granting  letters,  as,  of  course, 
with  a  primary  reference  to  settling  a  decedent's  personal 
estate,  to  license  a  sale  of  real  estate  in  case  the  personalty 
proves  insufficient ;  and  the  local  appointment  simply  puts 
local  creditors  in  a  position  to  thus  assert  their  rights  against 
the  real  estate,  without  determining  of  itself  whether  the  land 
shall  actually  be  sold  or  not.^ 

§  28.  Constitutional  Points  affecting  Administration  in  the 
United  States.  —  Various  constitutional  points  have  been 
raised  in  our  several  State  courts,  most  of  which  are  refera- 
ble to  familiar  principles.  Thus  it  is  held  that  a  local  act 
which  draws  a  distinction,  in  the  distribution  of  the  assets 
of  persons  dying  insolvent,  between  persons  whose  deaths 
occurred  before  the  act  went  into  operation  and  those  who 
should  die  afterwards,  is  not  unconstitutional  in  the  sense  of 
"impairing   the   obligation    of   contracts";   and  that  under 

^  lb.    See  §  25a.  see  as  to  postponing  the  right  of  the 

2  Hart  V.   Coltrain,  19  Wend.   378;  foreign  and   domiciliary  representative 

Apperson  v.  Bolton,  29  Ark.  418;   Pres-  to  sell.    Apperson  v.  Bolton  and  Shel- 

cott  7/.  Durfee,  113  Mass.  477;   Sheldon  don  v.  Rice,  supra. 

V.  Rice,  30  Mich.   296;    Rosenthal  v.  *  Lees  z-.  Wetmore,  58  Iowa,  170. 

Reniick,  44  111.  202.  ^  Temples  v.  Cain,  60  Miss.  47S. 
^  Prescott    V.    Durfee,   supra.      And 

39 


§29 


EXECUTORS    AND    ADMINISTRATORS. 


[PART    I. 


such  reservations  the  old  rule,  according  priority  to  judgment 
creditors,  may  well  be  abolished.  ^  A  special  act  of  the  legis- 
lature, it  is  also  held,  may  change  the  administration  of  an 
estate  from  one  county  to  another.^ 

S  29.  Probate  Jurisdiction  exercised  by  each  State  separately  ; 
United  States  Courts  should  not  interfere.  —  In  the  United 
States,  each  State  regulates  the  settlement  of  estates  in  its 
own  jurisdiction,  and  no  administration  is  extra-territorial. 
In  each  State,  accordingly,  estates  may  be  settled  and  claims 
proved  under  the  State  laws.  No  foreign  proof  of  claims  can 
be  enforced  if  the  State  chooses  to  require  a  re-allowance ; 
nor  can  a  foreign  judgment,  however  respected  as  evidence, 
be  enforced  as  a  judgment  in  the  domestic  jurisdiction  without 
being  established  in  new  legal  proceedings.  Whatever  may 
be  done  with  the  final  balance,  as  between  a  domiciliary  and 
ancillary  jurisdiction,  a  dead  person's  estate  must  be  admin- 
istered under  the  probate  laws  and  system  of  the  State 
granting  letters,  up  to  the  time  of  distribution,  or  until  adju- 
dication is  made  as  to  the  final  balance.  And  it  would  ap- 
pear that  a  decree  by  a  federal  court  cannot  affect  strangers 
to  the  record  or  interfere  with  the  regular  probate  settlement 
of  an  estate  in  a  State  court  which  has  probate  jurisdiction.^ 


1  Deichman's  Appeal,  2  Whart.  395. 
And  see  Place  v.  Oldham,  10  B.  Mon. 
400. 

2  Wright  V.  Ware,  50  Ala.  549.  And 
see  Peters  v.  Public  Administrator,  i 
Bradf.  Sur.  (N.  Y.)  200.  The  repeal 
of  a  law  designating  a  certain  official  as 
administrator  does  not  ipso  facto  revoke 


the  letters,  but  leaves  the  probate  court 
to  act  accordingly.  Hull  v.  Neal,  27 
Miss.  424.  The  laws  in  force  when  the 
representative  gave  bond  is  presumed 
to  govern  as  to  its  prosecution.  Mc- 
Govney  v.  State,  20  Ohio,  93. 
3  Dickinson  v,  Seaver,  44  Mich.  624. 


40 


PART  II. 

APPOINTMENT  AND   QUALIFICATION  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAPTER   I. 

APPOINTMENT    OF    EXECUTORS. 

§  30.  Modern  Definition  of  Executor.  —  While  in  modem 
times  it  cannot  be  strictly  said  that  the  designation  of  a  particu- 
lar executor  is  essential  in  order  to  constitute  a  will,  every  ex- 
ecutor doubtless  derives  his  authority  from  such  an  instrument. 
An  executor  should  in  fact  be  defined  as  one  to  whom  the 
deceased  has  duly  committed  the  execution  or  putting  in  force 
of  his  last  will  and  testament ;  or,  in  other  words,  the  settle- 
ment of  his  estate.^  In  such  a  connection  haercs  testamenta- 
rius  is  the  usual  term  of  the  Roman  law  as  to  movables  ;  and 
as  Lord  Hardwicke  once  observed,  "executor"  is  a  barbarous 
term  unknown  to  that  law  ;  ^  the  truth  being,  however,  that 
the  testator  seldom  committed  execution  (or  perhaps  one 
should  say,  administration)  to  any  other  person  than  the 
testamentary  heir  himself ;  whereas,  by  the  codes  of  modern 
Europe,  the  general  employment  of  executors  is  partly  favored, 
as  persons,  not  necessarily  legatees,  but  rather  official  repre- 
sentatives of  the  estate,  to  carry  out  the  provisions  of  the  will.^ 

1  2  Bl.  Com.  503;    I  Wms.  Exrs.  7th  guards  for  particular  legatees  and  other 

ed.    226;    Bouv.    Diet.    "Executors";  persons  interested  in  the  estate.     Ih. 

supra,  §  3.  Swinburne  and  other  early  writers  of 

'^  3  Atk.  304.  our  law  state  other  acceptations  of  the 

^  Domat    Civ.    Law,    §§    3330-3332.  word  "executor"  inclusive  o{  adiiiinis' 

What  we  call  "  executor  and  residuary  trato>-,Yi\!X\^t.  executor  a  Uslatore  consti- 

legatee  "  corresponds  to  this  testamen-  tutus,  or  executor  testamentarius  is  the 

tary   heir    of  the    Roman   law,   against  only   one    meant    in    modern    English 

whose  knavery  it  was  found  necessary  speech.     I  Wms.  Exrs.  226. 
after  long  experience  to  extend  the  safe- 

41 


§  32  EXECUTORS    AND    ADMINISTRATORS.  [PART   IL 

§  31.  Designation  of  Executor  under  a  "Will;  the  Trust  may 
be  absolute  or  qualified.  —  Whenever  the  testator  nominates 
an  executor,  this  is  enough  to  make  his  instrument  a  will  and 
require  its  probate  as  such,  even  though  no  legacy  be  given 
and  no  special  direction  of  a  testamentary  character.  Nor 
is  it  uncommon  for  one  to  make  his  last  will  and  testament 
for  the  sole  j^urpose  of  selecting  or  nominating  the  person  or 
persons  who  shall  administer ;  meaning  that  his  estate  shall 
be  managed  and  distributed  upon  his  decease  as  though  he 
had  died  intestate.^ 

Furthermore,  the  interest  of  every  executor  in  his  testator's 
estate  is  what  the  testator  may  have  given  him ;  and  hence  a 
testator  may  make  the  trust  absolute  or  qualified  respecting 
his  property ;  qualifying  the  trust  as  to  the  subject-matter, 
the  place  where  the  trust  shall  be  discharged,  and  the  time 
when  the  executor  shall  begin  and  continue  to  act  as  such.^ 

§  32.  'Who  are  capable  of  becoming  Executors;  Rule  as  to 
Married  Women,  Infants,  Corporations,  Aliens,  &c.  —  All  per- 
sons, generally  speaking,  are  capable  of  becoming  executors 
who  are  capable  of  making  wills.^  The  favor  of  our  law 
extends  even  further  in  this  respect.  For,  while  a  wife, 
under  the  old  rule  of  coverture,  was  held  incapable  of  mak- 
ing contracts  or  a  valid  will,*  the  husband  might  concur  in 
the  appointment,  or,  so  to  speak,  perform  the  trust  vested  in 
her  as  executrix  or  administratrix  ;  and  only  the  wife's  tempo- 
rary legal  disability,  and  the  husband's  liability  for  her  acts, 
obstructed  practically  her  sole  performance  of  such  duties 
under  an  appointment  which  the  spiritual  courts  at  all  events 
were  inclined  to  recognize.^     An  infant,  too,  though  not  of 

1  Lancaster,  Goods  of,  i  Sw.  &  Tr.  Wife  made  sole  executrix  with  her  hus- 
464;  Jordan,  Goods  of,  L.  R.  i  P.  &  D.  band's  consent.  Stewart,  In  re,  56  Me. 
555 ;   I  Wms.  Exrs.  227.  300.     And   see   Lindsay  v.  Lindsay,    i 

2  Mr.  Justice  Wayne  in  Ildl  57.  Tucker,  Desau.  150.  Statutes  sometimes  require 
13  How.  466.     And  see  §  \Q,  post.  the  husband  to  join  in  the  wife's  bond 

8  2  Bl.  Com.  503.  as  executrix.     See   Airhart  v.  Murphy, 

*  As  to  her  will,  see  Schoul.  Hus.  and  32   Tex.  131;  Cassedy  v.   Jackson,  45 

Wife,  §§  457-470.    Schoul.  Wills,  Part  Miss.   397.     Local  statutes  greatly  en- 

IL,  c.  3.  large   at  the  present   day  the   married 

°  Schoul.  Hus.  and  Wife,  §§  163,  460,  woman's   rights    in   these    as   in   other 

and  cases  cited ;  i  Wms.  Exrs.  232-235.  respects.     Schoul.  Hus.  and  Wife,  Ap- 

42 


CHAP.     I.] 


APPOINTMENT    OF    KXCCUTORS, 


§32 


full  testamentary  capacity,  may,  however  youni;,  and  even 
while  unborn  and  in  ventre  sa  mere  be  appointed  executor;^ 
our  modern  statutes,  however,  disqualifying  one  from  per- 
forming the  functions  of  sole  executor  during  his  minority, 
and  granting  administration  ciini  testamento  annexo  to  another 
until  such  infant  shall  have  attained  minority.^ 

Whether  a  corporation  aggregate  can  be  executor  has  long 
been  doubted.^  In  some  parts  of  the  United  States  this 
point  is  decided  adversely  as  to  aggregate  corporations  in 
general ;  *  though  companies  may  now  be  found  whose  char- 
ters expressly  permit  the  exercise  of  such  functions  in  con- 
nection with  the  care  and  investment  of  trust  funds.  Modern 
English  practice  recognizes  the  right  of  a  corporation  unsuit- 
able for  the  trust,  which  is  named  executor,  to  nominate  per- 
sons who  may  execute  the  trust  in  its  stead. ^  A  corporation 
sole  or  official,  such  as  the  mayor  of  London  or  the  bishop  of 


pendix;  Curser,  Re,  25  Hun,  579.  As 
to  the  capacity  of  a  wife  for  such  trusts 
where  living  separated  from  her  hus- 
band, see  Hardinge,  Goods  of,  2  Curt. 
640.  And  see  post  as  to  administration 
by  a  wife. 

The  English  canon  law,  like  the  civil, 
made  no  distinction  between  women 
married  and  unmarried,  and  hence  per- 
mitted a  wife  to  take  upon  her  the  pro- 
bate without  the  consent  of  her  husband. 
Godolph,  Pt.  2,  c.  10,  §  3 ;  Dye,  Goods 
of,  2  Robert.  342.  But  such  were  the 
practical  disabilities  of  coverture,  and 
the  necessity  of  joining  husband  and 
wife  in  suits,  that  chancery  sometimes 
enjoined  the  wife  from  performing  the 
duties  of  executrix.  Taylor  v.  Allen, 
2  Atk.  212.  And  see  2  Wms.  Exrs. 
233-235 ;  English  v.  McNair,  34  Ala. 
40.  The  husband  cannot  compel  his 
wife  to  accept  an  executorship.*  i  Wms. 
Exrs.  235.  Me  may  object,  however,  to 
her  doing  so;  though  it  is  held  under 
English  statutes  that  having  so  objected, 
where  she  was  named  sole  executrix,  the 
grant  may  be  made  to  her  attorney. 
Clarke  v.  Clarke,  L.  R.  6  P.  D.  103.  A 
man  marrying  a  woman  who  is  an  exec- 


utrix becomes  executor  in  her  right  and 
as  such  accountable.  Wood  -'.  Chet- 
wood,  27  N.  J.  Eq.  31 1;  Schoul.  IIus. 
and  Wife,  §  163. 

1  Wms.  Exrs.  232;  Piggot's  Case,  5 
Co.  29  a;    2  Bi.  Com.  503. 

2  38  Geo.  III.  c.  88,  §  6.  Previous  to 
this  statute  an  infant  seventeen  years  old 
might  in  England  act  as  executor.  See 
post  as  to  administration.  As  to  Ameri- 
can statutes,  see  Christopher  v.  Cox,  25 
Miss.  162;  Schoul.  Dom.  Rel.  §  416. 
The  request  in  a  will  that  certain  execu- 
tors shall  serve  until  the  testator's  son 
becomes  twenty-one,  is  not  an  appoint- 
ment of  the  son  at  twenty-one.  Frisby 
V.  Withers,  61  Tex.  134.  The  "bene- 
ficiary heir  "  is  favored  under  La.  Rev. 
Code.  And  if  he  be  a  minor  with 
parents  living,  they  are  entitled  to  the 
executorship  as  representing  him.  Gus- 
man's  Succession,  36  I.a.  An.  299. 

3  I  Wms.  Exrs.  7th  ed.  228,  229. 

*  Georgetown  College  v.  Browne,  34 
Md.  450;  Thompson's  Estate,  "i,},  Barb. 
334.  Qu.  as  to  the  New  Jersey  rule 
Porter  v.  Trail,  30  N.  J.  Eq.  106. 

^  Darke,  In  re,  I  Sw.  &  Tr.  516. 


43 


§   33  EXECUTUKS    AND    AIJMINISTRATORS.  [PAKT    II. 

Exeter,  may  be  and  act  as  executor.  And  so  may  a  co-part- 
nership, in  the  sense  that  the  individual  members  composing 
it,  and  not  the  firm  collectively,  shall  be  entitled  to  the  trust. ^ 
Non-residence  does  not  necessarily  disqualify  an  executor 
at  common  law.  Thus  an  alien  friend  is  not,  by  the  English 
law,  disqualified  from  becoming  an  executor  ;  and  even  as  to 
alien  enemies,  the  rules  of  modern  warfare  regard  the  private 
interests  of  foreigners  more  generously  than  formerly.^  In 
the  United  States  the  right  of  non-residents  to  become  execu- 
tors or  administrators  is  regulated  by  local  legislation  not  by 
any  means  uniform  ;  but  the  better  policy  favors  such  rights, 
provided  that  adequate  security  be  furnished  for  protecting 
the  interests  of  parties  dwelling  within  the  State,  so  that,  at 
all  events,  the  non-resident  may  designate  the  party  resident 
who  should  represent  him  ;  while,  as  between  citizens  merely 
of  different  States,  a  rigid  rule  of  exclusion  seems  especially 
harsh. '^ 

§  33-  "^^o  are  Capable  of  becoming  Executors  ;  Rule  as  to 
Criminals,  Dissolute  Persons,  Insolvents,  etc.  —  The  principle 
thus  indicated  is,  that  one's  choice  of  an  executor  by  his  last 
will  being  so  solemn  an  act,  and  by  a  person  legally  capable 
of  making  a  choice  among  friends  and  kindred,  his  last  wishes 
should  be  heeded.  And  so  far  has  our  law  carried  this  prin- 
ciple as  to  permit  persons  obviously  unsuitable  for  the  trust 
to  exercise  it  to  the  detriment  of  creditors  and  legatees,  on 
the  suggestion  that  the  testator,  at  all  events,  must  have  con- 
fided in  such  a  person.  Moreover,  as  courts  have  observed 
with  a  touch  of  false  logic,  the  office  of  executor  being  held 
in  another's  right,  is  not  tainted  by  his  personal  guilt.* 
Hence,  not    only  might    persons  attainted  or  outlawed  for 

1  Fernie,  In  re,  6  Notes  of  Cas.  657.  serves  greater  consideration.  See  Mc- 
I  Wms.  Exrs.  229.  As  to  making  one's  Gregor  v.  McGregor,  i  Keyes  (N.  Y.) 
probate  judge  his  executor,  see  Gregory  133;  C«tler  v.  Howard,  9  Wis.  309; 
V.  Ellis,  82  N.  C.  225;  Ayres  v.  Weed,  Sarkie's  Appeal,  2  Penn.  St.  157;  Ad- 
l6  Conn.  291.  ministration, /(JjA 

2  See  2  Wms.  Exrs.  229-231,  and  n.  ^  As  to  refusing  to  take  the  oath  of 
by  Perkins;  Co.  Lit.  129  b.  The  rule  allegiance,  see  Vogel  v.  Vogel,  20  La. 
differs  in  various  States.     Most  of  the  Ann.  181. 

decisions   relate,    however,    to    admin-         *  Smethurst  v.  Tomlin,    2  Sw.  &  T. 
istrators,  and  perhaps  an  executor  de-     143. 

44 


CHAP.    I.J  APPOINTMENT    OF    EXECUTORS.  §   33 

political  offences  become  executors,  but  even  those  convicted 
of  felony  ;  crime  seldom  if  ever  operating  to  disqualify  one  for 
the  trust ;  ^  and  persons  immoral  or  habitual  drunkards  were 
permitted  to  serve.^  But  the  tendency  of  our  modern  legis- 
lation is  to  correct  this  evil,  not  by  permitting  a  qualified 
executor's  authority  to  be  .collaterally  impeached,  but  by 
enlarging  the  discretionary  power  of  courts  having  probate 
jurisdiction,  so  that  persons  dissolute  or  otherwise,  and  evi- 
dently unsuitable,  shall  not  be  qualified,  or,  if  qualified,  may 
be  afterwards  removed  for  cause  duly  shown.'^  For  the  inter- 
ests of  creditors  and  legatees  should  be  respected  more 
than  any  gratification  of  the  testator's  caprice  in  selecting 
the  trustee  of  those  interests ;  and  the  proper  execution 
of  his  will  is  paramount  to  execution  by  any  particular 
agency. 

Hence,  too,  poverty,  or  even  insolvency,  constitutes  no 
legal  cause  at  common  law  for  disqualifying  one  from  the 
ofBce  of  executor  ;  and  thus  have  English  cases  insisted  to 
the  extent  of  compelling  spiritual  courts  to  respect  the  testa- 
tor's choice,  where  the  executor  named  had  absconded,  or 
after  the  probate  had  become  bankrupt,  and  where  legatees 
were  left  without  adequate  security.*  In  consequence,  how- 
ever, of  such  hardships,  the  court  of  chancery  assumed  juris- 
diction, and  receivers  may  now  be  appointed  under  its  direction, 
and  the  bankrupt  or  insolvent  restrained  from  committing 
acts  injurious  to  the  estate.^     This  jurisdiction  in  the  United 

^  I  Wms.  Exrs.  7th  ed.  235,  236;  Co.  to  the  paramour  of  a  dissolute  testatrix. 

Lit.  128  a;   3  Bulst.  210;   Killigrew  v.  Plaisance's  Estate,   Myrick   (Cal.)    117. 

Killigrew,    i    Vern.    184;    Smethurst  v.  But,  aside  from  statute,  the  court  can- 

Tomlin,  2  S\v.  &  T.  143.  not  refuse  to  qualify  an  executor  on  ac- 

■^  Sill  V.  McKnight,  7  W.  &  S.  244;  count  of  his  immoral  character.     Berry 

Berry  v.  Hamilton,  2  B.  Mon.  191.  v.  Hamilton,  12  B.  Mon.  191. 

^  See/t)5/,  c.  3,  as  to  appointing  ad-  *  i  Salk.  36,  299;  3Salk.  162;  Swinb. 

ministrators.     These  statutes  have  refer-  pt.    5,    §§    2-10;    i    Wms.    Exrs.  236; 

ence  to  both  executors  and  administra-  Hathornthwaite  v.  Russell,  2  Atk.  127. 

tors.     And  for  habitual  drunkenness,  as  ''  Rex  %•.  Simpson,  I  W.  Bl.  458;    Ut- 

well  as  lunacy,  duly  shown,  the  letters  terson  v.  Mair,  2  Ves.  jr.  95;   bcott  v. 

testamentary  may  be  revoked.      Sill  v.  Becher,  4  Price,  346;  Ellis,  Ex  parte, 

McKnight,   7  W.   &  S.  244;   Webb  v.  1  Atk.   loi;    Elmendorf  v.  Lansing,  4 

Dietrich,  7  W.  &  S.  402.     And  see  Mc-  John.  Ch.  562.     So,  too,  where  an  ex- 

Gregor  v.  McGregor,   2;^  How.  (N.  Y.)  ecutrix  marries  a  man  bankrupt  or  insol- 

Pr.  456,  36  Hun,  122.     Letters  refused  vent,   who  would  otherwise    have  mi* 

45 


g   33  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

States  is  aided  further  by  local  statutes  which  require  an 
executor  to  give  bonds  to  the  probate  court  for  the  faithful 
discharge  of  his  trust,  either  with  or  without  sureties,  as  may 
be  adjudged  prudent  in  the  interests  of  the  estate.^  Chan- 
cery, aside  from  such  legislation,  may  oblige  an  insolvent 
executor,  like  any  other  trustee,  to  furnish  security ;  ^  but  not 
because  of  his  poverty  or  insufficient  estate  alone  ;  ^  and  where 
it  is  shown  that  the  testator  made  his  choice  knowing  that 
the  person  in  question  was  bankrupt  or  insolvent,  the  court 
hesitates  to  control  the  latter,  out  of  mere  regard  to  those 
adversely  interested,  unless  invested  with  a  statute  discretion.* 
By  both  the  common  and  civil  law,  idiots  and  lunatics  have 
been  deemed  incapable  of  becoming  executors  ;  a  good  reason, 
at  the  outset,  being  that  such  a  person  cannot  determine 
whether  to  accept  the  trust  or  not  ;  and  since,  furthermore, 
an  insane  person  is  in  no  condition  to  perform  the  functions 
of  the  office  at  all,  the  court  may  commit  administration  to 
another  where  the  executor  becomes  afterwards*  insane.^  In 
some  of  our  States  legislation  provides  fully  for  the  emer- 
gency by  facilitating  the  power  of  making  removals  in  such 
cases.^ 

Modern  legislation,  however,  enlarges  the  control  of  pro- 
managed  the  trust  in  her  right.  Stair-  67.  Mere  poverty  existing  at  the  testa- 
ley  V.  Babe,  i  McMuU.  Ch.  22.  Author-  tor's  death,  without  maladministration, 
ity  under  bankrupt  acts  appears  to  be  loss,  or  danger  of  loss,  from  misconduct 
an  element  in  such  jurisdiction.  Pecu-  or  negligence,  will  not  authorize  a  court 
niary  circumstances  of  a  widow  or  near  of  equity  to  put  the  executor  under  a 
relative  named  as  executrix  should  not  bond,  or,  as  an  alternative,  require  him 
be  taken  to  defeat  the  selection  unless  to  give  up  the  office.  Fairbairn  v. 
the  reasons  are  strong,    i  Dem.  396,  501.     Fisher,  4  Jones  Eq.  390. 

^  See  post  as  to  bonds  of  executors  *  Wms.  Exrs.  237 ;  Langley  v.  Hawke, 
and  administrators.  An  executor  who  5  Madd.  46.  It  should  not,  however, 
offers  solvent  sureties  has  a  good  right  be  readily  inferred  from  the  mere  cir- 
toqualify.if  legally  and  mentally  capable,  cumstances  of  execution  that  the  testa- 
Holljrook  V.  Head  (Ky.)  6  S.  W.  592.       tor  expected  that  the  person  would  be 

^  I    Eq.  Cas.   Abr.   238,  pi.  22;    Bac.     a  bankrupt  or  insolvent  when  the  time 
Abr.  Executors,  A.  6;  Slanningz/.  Style,     came  to  assume  the  functions  of  execu- 
3  P.   Wms.   336;    I   Wms.   Exrs.   237;     tor.     lb. 
Mandeville  v.  Mandeville,  8  Paige,  475.         *  Bac.  Abr.  Executors,  A.  5 ;    i    Salk. 

3  Ilathornthwaite   v.   Russell,  2  Atk.     36;    i  Wms.  Exrs.  238;    Evans  57.  Tyler, 
126;  Mandeville  t'.  Mandeville,  8  Paige,     2  Robert.  128,  134. 
475;   Wilkins  z/.  Harris,  i  Wins.  (N.  C.         ''McGregor  v.   McGregor,    i    Keyes, 
Eq.)4l;  Bowman  z/.Wootlon,  8B.  Mon.     133;   33  How.  (N.  Y.)  Pr.  456. 

46 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS.  §   34 

bate  courts  over  improper  testamentary  appointees.  Thus, 
in  Massachusetts,  the  probate  court  has  a  discretionary  power 
to  remove  or  refuse  to  appoint  executors  when  insane  or  oth- 
erwise incapable  of  discharging  the  trust,  or  evidently  unsuit- 
able therefor.  1  In  the  New  York  code,  the  necessary  quali- 
fications of  an  e.xecutor  are  prescribed  with  minuteness ;  and 
drunkenness,  dishonesty,  improvidence,  want  of  understand- 
ing, conviction  of  an  infamous  crime,  may  render  one  inca- 
pable of  exercising  the  trust,  as  well  as  other  causes,  to  be 
referred  to  the  principle  of  unsuitableness.^  While,  therefore, 
on  the  whole,  the  old  law  dealt  tenderly  with  the  choice  of 
the  deceased,  modern  statutes,  and  more  perhaps  those  of 
the  United  States  than  of  England,  regard  with  much  con- 
cern the  interests  of  those  taking  rights  under  the  will  ;  and, 
instead  of  sanctioning  temporary  grants  by  way  of  superse- 
dure  for  an  emergency,  permit  rather  that  letters  testamen- 
tary be  refused  or  the  unsuitable  incumbent  summarily 
removed  from  ofifice. 

§  34.  Miscellaneous  Disabilities  for  the  Office. —  It  should  be 
added  that,  so  long  as  probate  law  was  shaped  by  canonists 
and  ecclesiastics,  and  persecutions  were  made  for  conscience' 
sake,  numerous  religious  disabilities  existed  in  English  law, 
which  have  since  been  taken  off  by  Parliament,  and  at  the 
present  day  find  recognition  neither  in  England  nor  the 
United  States.^ 

1  Mass.  Pub.  Stats,  c.  131,  §  14.     As  his  trust,  simply  on  proof  that  he  was 

a   person  "  evidently   unsuitable,"  one  unsuitable  at  the  time  of  his  appoint- 

may  be  removed  or  refused  the  execu-  ment  and  without  proof  that  he   con- 

torship,  on  the  ground  that  his  individ-  tinues  to  be  so.     Drake  v.  Green,   lo 

ual  claims  on  the  estate  would  conflict  Allen,  124.     And  see  Hursey  v.  Coffin, 

with  his  duties  as  executor.     Thayer  ?'.  i  Allen,  354. 

Homer,  1 1  Met.  104,  1 10.   See  Hubbard,  "^  See    McGregor    v.    McGregor,    t,^ 

J.  ib.     So,  too,  under  a  similar  Wiscon-  How.  (\.  ^^)  Pr.  456;    i    Keyes,   133; 

sin  statute,  a  hostile  feeling  between  the  Freeman   v.  Kellogg,  4  Redf.  (N.  Y.) 

executors  and  parties  interested  plainly  218.     And  see  Webb  v.  Dietrich,  7  W. 

detrimental  to  the  management  of  the  &    S.  402;    Plaisance's  Estate,    Myrick 

estate  may  justify  removal.     Pike's  Es-  Prob.  117. 

tate,  45  Wis.  391.     An  executor  ought  ^  Not  only  were   traitors  and   felons 

not  to  be  removed,  after  having   been  considered  incapable  of  becoming  exec- 

once   appointed   and   qualified,   as    evi-  utors  by  the  civil  and   canon  law,  but 

dently  unsuitable  for  the  discharge  of  heretics,    apostates,    manifest    usurers, 

47 


§  36  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

§  35.  Express  Appointment  of  Executor  by  Testament.  — An 
executor  must  necessarily  derive  his  appointment  from  a  tes- 
tament ;  for  if  the  will  designates  no  one  for  that  office,  the 
court  commits  the  trust  to  an  administrator  with  the  will  an- 
nexed.i  Nor,  as  the  old  books  have  said,  can  an  executor  be 
instituted  by  a  mere  codicil  ;  though  executors  doubtless  may 
be  substituted  or  added  by  a  codicil,  where  the  original  will 
made  the  primary  appointment.^ 

§  36.  Constructive  Appointment  by  designating  Functions, 
etc. ;  Executor  according  to  the  Tenor.  —  But  no  particular  form 
of  appointing  an  executor  is  prescribed,  nor  is  it  necessary 
that  one  be  designated  by  that  particular  name.  A  construc- 
tive appointment  suffices ;  as  where  the  testator  indicates  his 
desire  that  the  essential  functions  of  that  office  shall  be  dis- 
charged by  a  certain  person  ;  in  which  case  one  is  said  to 
become  executor  under  the  will  according  to  the  tenor.^  Thus 
the  testator's  declaration  that  A.  B.  shall  have  his  goods  to 
pay  his  debts  and  otherwise  to  dispose  at  his  pleasure,  and 
such  like  expressions,*  may  suffice  for  this  purpose.  So,  too, 
the  commitment  of  one's  property  to  the  "administration  "  or 
to  "the  disposition"  of  A.  B.  ;^  or  the  direction  that  A.  B. 
shall  pay  debts  and  funeral  and  probate  charges ;  or  shall  re- 
ceive the  property  and  pay  the  legacies  ;  ^  or  the  gift  to  A.  B. 
of  all  one's  property,  to  apply  the  same,  "after  payment  of 

famous    libellers,    incestuous    bastards,  1 21.     And  see  Woods,  Goods  of,  L.  R. 

and  persons  standing  under  sentence  of  I  P.  &  D.  556. 

excommunication.    .Swinb.  pt.  5,  §§  2-6.         ^  Fraser,  Goods  of,  L.  R.  2  P.  &  D. 

Other  disciualilicalions  were  created, dur-  183;    I   Wms.  Exrs.  239,  and  Perkins's 

ing  the  religious  struggles  of  the  17th  note;    Hartnett  v.   Wandell,  60  N.  Y. 

and  1 8th  centuries,  by  legislation;   re-  350;    State  v.   Rogers,   i    Houst.  569; 

lating,  for  instance,  to  Popish  recusants  Carpenter   v.   Cameron,    7    Watts,    51; 

on  the  one  hand,  and  those  denying  the  Grant  v.  .Spann,  34  Miss.  294;   Myer  v. 

Trinity  or  the  Christian   religion  on  the  Daviess,  lO  B.  Mon.  394. 

other.    See  Wms.  Exrs.  7th  ed.  237,  238.         ^  Ilenfrey  v.  Henfrey,  4  Moo.  P.  C. 

^  I   Wms.  Exrs.  239;   3  Redf.  Wills,  ^y,   Cro.  Eliz.  43. 
2d  ed.  62.  *  Cro.  Eliz.  164;    I  Wms.  Exrs.  239. 

2  Swinb.  pt.    I,  §    5,  pi.    5;    I    Wms.         '^  Pickering  v.  Towers,  2  Cas.  temp, 

Exrs.  8.     As  for  naming  A.  sole  execu-  Lee,  401;    2   Redf.   Wills,   2d  ed.  62; 

tor  in  a  will,  and  B.  sole  executor  in  the  Fry,  Goods  of,  i  liagg.  80. 
codicil,  see  Wetmore  v.  Parker,  7  Lans. 

48 


CHAP.  I.]       APPOINTMENT  OF  EXECUTORS.  §  37 

debts,"  to  the  payment  of  legacies.^  For  all  such  expressions 
point  at  the  essential  functions  of  an  executor ;  functions 
which  exist  in  consistent  combination.  Any  words  which 
substantially  confer  upon  a  person,  either  expressly  or  by  im- 
plication, the  rights,  powers,  and  duties  of  an  executor,  amount 
to  such  appointment  under  the  will.- 

§  37.  The  same  Siibject;  Mere  Designation  of  Trustees,  Lega- 
tees, etc.,  Insufficient  for  Executorship.  —  Where,  however,  the 
court  cannot  gather  a  testamentary  intent  that  the  person  in 
question  should  collect  dues,  pay  debts,  and  settle  the  estate 
like  an  executor,  executorship  according  to  the  tenor  will 
not  be  granted.  For  instance,  it  will  not  if  A.  B.  is  desig- 
nated simply  to  perform  some  trust  under  the  will ;  ^  since 
trustees  under  a  will  are  not  necessarily  executors,  but  are  post 
poned  in  office  to  the  latter  and  to  a  due  administration  of  the 
estate,  taking  out  separate  letters  ;  otherwise,  howcv'cr,  when 
the  execution  of  the  will  was  evidently  conferred  likewise 
upon  the  trustees,  the  style  of  the  parties  as  such,  concluding 
by  no  means  their  right  to  be  considered  executors  also,  and 
to  receive  letters  in  such  capacity.* 

A  testamentary  direction  that  one's  property  shall,  upon 
his  decease,  go  at  once  to  the  legatees  or  to  trustees,  as  if  to 
dispense  with  administration  and  the  payment  of  debts  alto- 
gether, or  to  confer  the  authority  out  of  course,  would  be  nu- 
gatory ;^  and,  in  such  case,  the  will  having  provided  neither 
expressly  nor  by  implication  for  a  lawful  executor,  the  case 
becomes  one  for  granting  administration  de  bonis  non,  the 
usual  procedure,  as  we  shall  see  hereafter,  wherever  there  i? 

1  Bell,  Goods  of,  L.  R.  4  P.  D.  85.  State  v.  Watson,  2  Spears  (S.  C.)  97 

And  see  Manly,  /«  re,  L.  R.  i  P.  &  D.  And  see  Knight  v.  Loomis,  30  Me.  204: 

556;    Bradley's  Goods,  8  P.  D.  215.  Simpson  v.  Cook,  24  Minn.   180,  tliat 

^  Carpenter  v.  Cameron,  7  Watts,  51;  naming   the   same   person    as    executtir 

Grant  v.  Spann,  34  Miss.  294;  Xunn  v.  and  trustee  does  not  necessarily  extend 

Owens,  2  Strobh.  lOi.  the  trusteeship  to   others  who  may  be 

8  Jones,  Goods  of,  2  Sw.  &  T.  155;  appointed  to  execute  the  will. 
I  Wms.    Exrs.  242;    Punchard,  Goods  ^  Toomy,  Goods  of,  3  Sw.  &  Tr.  562; 
of,  L.  R.  2  P.  &  D.  369;   Wheatley  v.  Drury  v.  Natick,  10  Allen,  174;   New- 
Badger,  7  Penn.  St.  459.  comb    v.    Williams,    9    Met.    533.   per 

♦  Myers  v.  Daviess,  10  B.  Mon.  394;  Shaw,  C.  J.;    Hunter  v.  Bryson,  5  Gill 

McDonnell,  Ex  parte,  2  Bradf.  Surr.  32;  &  J.  483. 

49 


§  39  EXECUTORS   AND   ADMINISTRATORS.  [PART    II. 

a  will  but  no  executor.^  As  for  language  in  a  will  referring 
to  one  as  "executor  and  trustee,"  it  should  be  observed 
that  the  offices  of  executor  and  trustee  are  distinct,  and  that 
duties  of  the  trust  are  properly  to  be  performed  in  a  separate 
capacity  from  those  of  executor.^ 

Earlier  authorities  favor  the  position  that  one  who  is  named 
universal  heir  or  legatee  under  a  will  may  take  probate  as 
executor  ;^  but  unless  language  importing  the  right  to  settle 
the  estate  is  superadded,*  the  better  and  the  present  practice 
is  to  grant  him  administration  with  the  will  annexed,  instead 
of  letters  testamentary  according  to  the  tenor.^ 

§  38.  The  same  Subject;  Identifying  the  Executor. — There 
should  be  some  means  of  identifying  the  person  designated 
by  the  will  to  serve  as  executor,  else  the  designation  cannot 
operate.  But  an  executor  who  is  imperfectly  described  or 
designated  in  the  will  may,  by  extrinsic  evidence,  be  identi- 
fied as  the  person  actually  intended  by  the  testator.^  So  an 
erroneous  and  ambiguous  description  in  the  will  may  be  cor- 
rected by  extrinsic  evidence  showing  which  of  two  persons 
was  really  meant." 

§  39.  The  same  Subject ;  Suggested  Executor ;  Adviser,  etc. 
—  The  appointment  of  a  sole  or  joint  executor  may  be  by 
way  of  request  or  suggestion  rather  than  mandate  on  the 
testator's  part,^  and  a  probate  court  may  consider  its  force 
accordingly. 

^  See  Administration,  post.  only  one   survived  him,  held  that  this 

2  Wheatley    v.   Badger,   7  Penn.  St.  was  insufficient   designation  of  her   as 

459.  executrix.     Blackwell,  Goods  of,  25  W. 

8  Godolph,  pt.  2,  c.  S,  §  3;    Swinb.  R.  305. 

pt.  4,  §  4,  pi.  3;     Androvin   v.    Foil-  *  In  De  Rosaz,  Goods  of,   25  W.  R. 

blanc,    3   Atk.    301,  per   Lord    Hard-     352,    "Perceval of    B.,    Esquire," 

vvicke.  was  shown  to  be  a  friend  of  the  testator, 

*  Grant  v.  Leslie,  3  Phillim.  116.  a  person  whose  middle  name  was  "  Per- 

^  I  Wms.  Exrs.  240;  Oliphant,  Goods  ceval."     And   see    Wigram,    Evid.   4th 

of,  I  Sw.  &  Tr.  525.     And  see  Adam-  ed.  98;   Clayton  v.  Lord  Nugent,  13  M. 

son.  Goods   of,  L.  R.  3   P.  &  D.  253.  &  W.  207;   Baylis  v.  Attorney  (Jeneral, 

Where  the  testator  bequeathed   all  his  2  Atk.  239. 

property  to  his  three  sisters,  or  to  such  '  Brake,  Goods  of,  29  W.  R.  744. 

of  them  as  survived  him,  and  appointed  ^  Brown,  Goods   of,    25  W.    R.  431. 

either   one   "his   sole   executrix,"   and  Where  trustees  of  a  certain  lodge  the 

SO 


CHAP.  I.]       APPOINTMENT  OP  EXECUTORS.  §  4O 

One  who  is  named  in  the  will  as  thouf;h  an  assistant  in  the 
trust,  is,  by  American  practice,  usually  qualified  like  any  co- 
executor ;  English  cases  follow  often  the  same  rule.  I^ut  a 
testator  will  sometimes  name  another  person  besides  his 
actual  executor  to  advise,  oversee,  or  assist  the  latter  in  the 
performance  of  his  duties  ;  and  such  a  person,  not  unfre- 
quently  encountered  in  English  practice,  has,  if  so  the  testa- 
tor obviously  intended,  none  of  the  rights  or  responsibilities 
of  executor,  nor  any  right  to  intermeddle,  but  may  advise,  com- 
plaining to  the  court  if  his  advice  is  injuriously  neglected.^ 

§  40.  The  same  Subject ;  Conditional  Appointment ;  Substitu- 
tion ;  Co-executors,  etc.  —  From  a  will,  or  the  will  and  codicils 
taken  together,  may  be  deduced  various  provisional  appoint- 
ments of  executor.  These  should  be  respected  according  to 
the  testator's  manifest  intent.  Thus,  if  one  be  made  execu- 
tor upon  condition  that  another  will  not  accept  or  is  dead,  the 
latter,  if  he  prove  alive  and  willing  at  the  time  of  probate  to 
accept,  must  be  accorded  the  preference,  as  the  language  of 
the  will  implies.^  An  executor  by  the  tenor  may  be  qualified 
jointly  with  one  expressly  nominated.^ 

Where  several  executors  are  named  or  designated,  all  may 
be  qualified  as  co-executors,  though  all  are  thus  legally  re- 
garded as  an  individual,  in  place  of  a  sole  executor.*  A  tes- 
tator may,  however,  appoint  several  executors  under  his  will, 
substituting  one  after  another  in  order,  so  that,  if  the  first 
cannot  act,  the  next  may,  and  so  on  ;  in  which  case  the  ques- 
tion may  arise,  whether  the  substitution  relates  merely  to  a 
precedence  once  and  for  all  at  the  time  the  will  takes  effect, 
or  so  as  to  provide  for  a  successor  whenever,  prior  to  a  final 
settlement  of  the  estate,  a  vacancy  may  possibly  occur  in  the 
office.^     The  appointment  of  executors  under  a  will   may  be 


designated,  the  appointees  may  be  ascer-  ^  Grant   v.  Leslie,    3    Phillim.    116; 

tained.     2  Dem.  (N.  Y.)  91.  I  Wms.  Exrs.  245. 

1  I  Wms.  Exrs.  7th  ed.  244;   Powell  *  i  Wms.  Exrs.  246. 

V.  Stratford,   cited    3   Phillim.    118;     3  ^  Langford,  Goods  of,  L.  R.   i  P.  & 

Redf.  Wills,  2d  ed.  63.  D.  458:    Wilmot,  Goods  of,  2  Robert. 

^  I    Wms.  Exrs.  243;    2  Cas.  temp.  579;     Lighten,    Goods    of,     I     Hagg. 

Lee,  54;   Swinb.  pt.  4,  §  4,  pi.  6.  235. 

51 


§  41  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

revoked  by  the  substitution  of  others  under  a  codicil,^  or  a 
re-appointment  with  others  may  be  made  instead  ;2  and  of 
various  persons  named  as  co-executors,  he  or  they  who  may 
be  alive  and  willing  to  accept  the  trust  on  the  testator's 
decease  can  alone  be  deemed  qualified  for  the  office. 

An  executor  by  the  tenor  may,  if  the  will  so  intended,  re- 
ceive letters  jointly  with  an  executor  expressly  named. '^  And 
a  person  expressly  appointed  executor  for  limited  purposes 
may,  by  a  codicil,  receive  by  implication  full  general  powers.* 
There  is  no  legal  objection  to  qualifying  one  executor  for 
general  purposes,  and  another  for  some  limited  or  special 
purpose,  if  such  be  the  testator's  manifest  intention.^ 

§  41.  Testator's  Delegation  of  the  Power  to  name  an  Execu- 
tor or  Co-executor.  —  The  English  ecclesiastical  courts  were 
accustomed  to  grant  letters  testamentary  as  executors  to 
persons  named  by  those  who  had  a  nominating  power  con- 
ferred under  the  will.^  And  under  the  English  wills  act, 
this  practice  is  still  sanctioned.'  In  some  parts  of  the 
United  States  also,  the  testator's  right  to  delegate  to  some 
person  designated  in  the  will  the  power  to  name  an  executor 
is  likewise  upheld.^  And  thus  may  a  testator  authorize  the 
probate  court  to  appoint  as  executor  a  suitable  person  in  the 
event  of  the  resignation,  inability,  or  refusal  to  act,  of  the 
executor  named  by  the  testator  himself  in  his  will.^  Recent 
cases  have  in  this  manner  permitted  further  a  successorship 
to  be  maintained,  so  that  of  two  or  more  original  executors, 

1  Bailey,  Goods  of,  L.  R.  i  P.  &  D.  that  the  court  shall  issue  letters  to  the 
608.  persons    named   in  a  will  as   executors 

2  Leese,  Goods  of,  2  Sw.  &  Tr.  442.        does  not  preclude  the  issue  of  letters  to 
^  I  Wms.  Exrs.  245;    Grant  v.  Leslie,     one  not  expressly  named  but  duly  desig- 

3  Phillim.  116.  nated  as  such  by  virtue  of  such  a  power. 

*  Aird,  Goods  of,  i  Hagg.  336.  The  case  is  unlike  that  of  a  testator's 
5  Lynch   v.    Belle w,  3   Phillim.  424;     reserving  power  to  himself  to  deal  in- 

I  Wms.  Exrs.  245.  formally  hereafter  with  his  will. 

^  Cringan,  Goods  of,  i   Hagg.  548.  ^  State   v.    Rogers,    i    Houst.    (Del.) 

■^  2  Redf.  Wills,    63;    i    Wms.  Exrs.  569.     Such  person  being  hereby  "ap- 

245-247;   Jackson  v.  Paulet,  2  Robert,  pointed  to  be  my  executor,"  in  the  lan- 

344.  guage  of  the  will,  it  is  proper  for  the 

*  Hartnett  v.  Wandell,  60  N.  Y.  346.  court  to  grant  him  letters  testamentary 
Here,  as  in  Jackson  v.  Paulet,  supra,  it  instead  of  letters  of  administration  with 
is  maintained  that  a  statute  requirement  the  will  annexed,     lb. 

52 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS.  §  42 

the  survivor  or  survivors  shall  fill  the  vacancy ;  ^  all  of  which, 
however,  should  be  subject  to  the  court's  discretion.  A  like 
delegation  of  power  may  be  to  one  executor,  in  order  that  he 
may  name  his  own  associate.^  A  person  authorized  to  nomi- 
nate an  executor  has  sometimes  nominated  himself,  and  thus 
obtained  the  office.^ 

§  42.  Limited  or  Conditional  Executorship.  —  From  what  has 
been  said,  the  reader  will  infer  that  the  office  of  executor  is 
not  always  conferred  absolutely.  Wills,  we  know,  are  usu- 
ally drawn,  so  that  A.  B.  is  named  executor,  or  perhaps  A.  B. 
and  C.  D.,  or  A.  B.,  C.  D.,  and  E.  F.  ;  and,  whether  one  or  more 
executors,  the  rights  and  duties  thus  devolve  upon  the  per- 
son or  persons  named,  fully  and  immediately  upon  the  testa- 
tor's death  ;  so  that,  if  there  be  a  condition  precedent  at  all, 
it  is  only  such  as  probate  law  interposes  in  order  that  the  will 
may  be  duly  proved  and  the  executor  qualified  by  letters  tes- 
tamentary. But  a  testator  may,  and  sometimes  does,  impose 
conditions  and  limitations  under  the  will  at  his  own  discre- 
tion ;  and  the  old  books  state  numerous  instances  of  the  sort. 
Thus,  the  executor's  appointment  may  be  conditional  upon 
his  giving  security  for  paying  the  debts  and  legacies,''  or  so 
long  as  he  does  not  interfere  with  M.'s  enjoyment  of  Black- 
acre,^  or  after  he  has  paid  such  a  debt,*"  or  provided  he  prove 
the  will  within  three  calendar  months  after  the  testator's 
death ;  "*  and  such  condition  failing,  whether  precedent  or 
subsequent,  the  appointment  fails  upon  the  usual  principle 
of  a  conditional  appointment. 

Again,  there  may  be  limitations  placed  by  the  testator 
upon  the  exercise  of  the  office  ;  as  where  one  commits  the 
execution  of  his  will  in  different  countries  ^  (or  even,  as  the 

1  Deichman,  Goods  of,  3  Curt.  123;         ''  Dyer,  3  b,  pi.  8;  Cro.  Eliz.  219. 
Jackson  v.  Paulet,  2  Robert.  344.  ^  Stapleton   v.   Truelock,  3  Leon.  2, 

2  Hartnett  v.  Wandell,  60  N.  Y.  346.      pi.  6. 

8  Ryder,  Goods  of,  2  Sw.  &  Tr.  127.  ''  Wilmot,  Goods  of,  i  Curt.   i.    Here 

*  Godolph.  pt.  2,  c.  2,  §  I ;    I  Wms.  the    day  of  death  was  held  to  be  ex- 

Exrs.  7th  ed.  253.    The  procurement  of  eluded  in  the  computation  of  time. 

such  security,  where  prudence  requires  *  Hunter  v.  Bryson,  5  Gill  &  J.  483; 

it,  is   an    element   in    modern    probate  Mordecai  ?'.  Boylan,  6  Jones  Eq.  365  ; 

practice,  independently  of  the  testator's  Despard  t.  Churchill,  53  N.  V.  192.    An 

directions.     See  bonds,  c.  ^,  poit.  English  testator  appoints  a  resident  of 

53 


§  42  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

old  books  lay  it  down,  in  different  counties  ^)  to  different  per- 
sons. So  it  is  said  that  one  may  divide  the  duties  of  execu- 
tor with  reference  to  the  subject-matter:  appointing  one  for 
the  cattle,  another  for  the  household  stuff,  another  to  grant 
leases,  and  another  to  collect  debts  ;  ^  but  Lord  Hardwicke 
exposed  the  absurdity  of  such  a  division,  inasmuch  as  execu- 
tors must  act  jointly,  and  each  have  authority  as  to  the  whole 
estate  ;  ^  and  creditors  certainly  may  sue  them  in  such  a  case 
as  united  in  privity,  just  as  though  there  were  only  one 
executor.^ 

There  may  be  a  postponement  of  the  office,  or  some  proviso 
by  way  of  succession  or  the  substitution  of  one  executor  or 
set  of  executors  for  another.  Thus,  two  persons  may  be  ap- 
pointed executors  with  a  provision  that  the  one  shall  not  act 
during  the  life  of  the  other ;  ^  or  so  that  B.  shall  succeed  A. 
in  case  of  A.'s  death,  incapacity,  or  unwillingness  to  serve.*^ 
So,  too,  one  may  be  appointed  for  a  definite  period  of  time, 
or  during  the  minority  of  his  son,  or  the  widowhood  of  his 
wife,  or  until  the  death  or  marriage  of  his  son,  or  the  re- 
marriage of  his  widow,  or  while  the  instituted  executor  is 
absent  from  the  country^  In  all  such  cases,  if  a  vacancy  in 
the  office  occurs  at  any  time  which  the  will  itself  does  not 
supply,  whether  permanent  or  during  the  interval  that  must 

Portugal    to   be   his    executor    in   that  ^  Owen  p.   Owen,    l    Atk.   495,  per 

country.     This  does  not  entitle  the  Por-  Lord  Hardwicke. 

tuguese  executor  to  letters  in  England.  *  Cro.  Car.    293;    3   Redf.  Wills,  2d 

Velho  V.  Leite,  3  Sw.  &  Tr.  456.     So  ed.  65.     And  see  Mr.  Justice  Wayne  in 

there  may  be  general  executors  entitled  Hill  v.  Tucker,  13  How.  (U.  S.)  466. 

to  letters  in  England,  and  limited  exec-  ^  Wentworth    Off.    Ex.   13;     I    Wms. 

utors  added  for  India.     Wallich,  Goods  Exrs.  250,  251 ;  3  Redf.  Wills,  65. 

of,  3  Sw.  &  Tr.  423.     As   to   granting  ''  Lighton,  Goods  of,  I  Hagg.  235. 

ancillary  letters  in  a  State  or  jurisdiction  'Wms.    Exrs.    251;    Carte  v.   Carte, 

foreign   to   the  place   of  the   testator's  3  Atk.  180 ;  Cro.  EHz.  164;  2Cas.  t.  Lee, 

domicile  and  place  of  original  probate  37 1.     Other  instances  are  mentioned  by 

or  administration,  see  c.  pos^,  ancillary  Swinburne  and  other  early  writers;   as, 

appointments.  where  the  testator  appoints  one  to  be 

1  Swinb.  pt.  4,  §   18,  pi.  I,  4;    I  Wms.  his  executor  at  the  end  of  five  years  af- 

Exrs.    251,   252.     Such   a    division    of  ter  his  death,  or  at  an  uncertain  time, 

localities  in  one  jurisdiction,   however,  Swinb.  pt.  4,  §   17,  pi.   I-4.     Except  it 

seems  unreasonable  in  practice.  be   by  way  of  substituting   some    ne\* 

^  Dyer,  4  a;  Godolph.pt.  2,  c.  3,  pi.  executor    for   a   predecessor    upon    the 

2,  3;    I  Wms.  Exrs.  252.  happening  of  some  event,  such  execU' 

torships  are  seldom  created. 

54 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS.  §  43 

elapse  between  the  ending  of  one  executorship  and  the  begin- 
ning of  another,  the  probate  court  should  grant  administration 
with  the  will  annexed  of  such  tenor  as  the  emergency  requires.^ 
In  short,  there  may  be  various  qualifications  imposed  by 
one's  will  upon  the  executor  or  executors  therein  appointed. 
Various  substitutes  may  be  designated  to  serve  upon  one  and 
another  contingency,  and  in  succession  instead  of  jointly ; 
executors,  moreover,  may  be  appointed  having  separate  and 
distinct  functions  to  discharge,  some  full  and  general,  others 
limited  and  special,  in  authority.  For,  as  Mr.  Justice  Wayne 
has  observed,  while  the  estate  of  an  administrator  is  only 
that  which  the  law  of  his  appointment  enjoins,  an  executor's 
interest  in  the  testator's  estate  is  what  the  testator  gives 
him.2  But  where  the  authority  of  the  executor  is  restricted, 
this  should  appear  in  the  letters  testamentary.^  Nor  can  a 
testator  appoint  one  an  executor,  and  at  the  same  time 
prohibit  him  from  administering  the  estate ;  for  this  would 
be  to  deny  him  the  essential  functions  of  the  office.* 

§  43.  Whether  the  Executorship  passes  to  an  Executor's 
Representatives.  —  An  executor  cannot  assign  his  executorship, 
the  trust  being  pronounced  in  such  connection  a  personal 
one ;  ^  nor  can  the  executorship  pass  upon  his  death  to  his 
legally  appointed  administrator.*^  If  there  were  several  execu- 
tors, so  that  one  at  least  still  survives  in  the  office,  no  interest 
is  transmissible  by  the  deceased  executor.''  But  by  the  Eng- 
lish law,  wherever  a  sole  executor  had  assumed  office  under 
the  will,  or  all  co-executors  had  died,  so  that  no  surviving  ex- 

I3  Redf.  Wills,    65;    Swinb.  pt.  4,  Briggs,  Goods  of,  26  W.  R.  535.     Not 

§  17,  pi.  2.     See  c.  post  as  to  adminis-  even  to  an  administrator  with  will  an- 

tration  with  the  will  annexed.  nexed,  in  the  absence  of  express  words 

2  Hill    V.   Tucker,    13    How.   (U.S.)  in  the  grant.     lb. 
466.     And  see  Hartnett  v.  Wandell,  60        ®  2  Bl.  Com.  506.     Otherwise  setnble, 

N.  Y.  346.  with  an  administrator  durante  minore 

*  Barnes,  Goods  of,  7  Jur.  N.  S.  195;  aetate,  for  such  an  office  stands  in  place 
Gibbons  v.  Riley,  7  Gill,  81.  of    an    executor,     i    Freem.  287.     See 

*  See  Anon.  Dyer,  3  b;  l  Wms.  Exrs.  comments  of  i  Wms.  Exrs.  7th  ed. 
250,  «.,  showing  some  doubt  as  to  the  255,  n.  And  see  Grant,  Goods  of,  24 
effect  of  such  a  proviso;   though  semble  W.  R.  929. 

such  an  appointment  is  inoperative.  ^  I  Wms.  Exrs.  256,  284. 

^  Bedell   v.  Constable,   Vaugh.   182; 

55 


§  44  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ecutor  or  successor  could  succeed  on  his  decease  by  appoint- 
ment of  the  will,  such  executor  was  allowed  to  transmit  his 
office  by  his  own  will  to  his  own  executor,  by  way  of  dele- 
gating the  confidence  originally  reposed  in  him  to  the  person 
in  whom  he  himself  confided  ;  and  thus  might  the  executor 
of  an  executor  pass  on  the  estate  in  a  series  of  appointments, 
until  intestacy  broke  the  chain,  or  the  estate  became  finally 
settled  and  distributed.^  But  in  the  American  States  this 
rule,  which  so  disregards  the  testator's  kindred  and  their 
wishes,  is  now  quite  generally  changed  by  statute ;  and  in 
consequence,  the  duties  and  liabilities  of  the  sole  executor 
upon  his  decease  devolve,  not  upon  the  executor  of  the  ex- 
ecutor as  such,  but  upon  an  administrator  with  the  will 
annexed  of  the  estate  of  the  original  testator,  whose  appoint- 
ment is  made  by  a  court  upon  considerations  favorable  to 
those  interested  in  such  estate.^  The  executor  of  an  execu- 
tor cannot  take  the  office,  where  the  will  itself  provides 
expressly  a  different  mode  for  filling  vacancies  a§  they  occur  ;  ^ 
and  he  may,  of  course,  renounce  the  trust."* 

§  44.  Acceptance  and  Refusal  of  the  Executorship  ;  Citation 
of  the  Person  named,  etc.  —  Having  considered  how  the  testa- 
tor may  appoint  his  executor,  we  next  proceed  to  the  exec- 
utor's   decision  to  take  or  not  take  the  trust.     For   every 

1  I  Wms.  Exrs.  7th  ed.  254-256,  and  statutes  of  an  account  presented  by  the 

cases  cited ;    Smith,  Goods  of,  3  Curt,  executor  of  an  executor  against  his  tes- 

31 ;  2  Bl.  Com.  506.     This  rule  applied,  tator's  estate,  see  Wetzler  v.  Fitch,  52 

though  the  original  probate  was  a  lini-  Cal.  638.     In  some  States  the  old  rule 

ited  one.      Beer,  Goods  of,   2   Robert,  appears  to  be   still    followed.      Lay  v. 

349.     A  married    woman   as   executrix  Lay,  10  S.  C.  208;   Thomas  v.  Wood, 

might,  so  far  as  her  testamentary  power  i  Md.  Ch.  296;   Crafton  v.  Beal,  i  Ga. 

extended,    transmit    to    her    executor.  322;   Carroll  v.  Connet,  2  J.  J.  Marsh. 

Birkett   v.   Vandercom,    3  Hagg.    750.  195;     20   Fla.    58.     See  2   Dem.  327. 

But  it  is  essential  to  such  transmission  Where  an  executor  who  has  neglected 

that  the  executor  shall  have  probated  to  pay  a  legacy  has  died,  his  executor 

his  testator's  will  before  his  own  death,  is    liable    to    the    legatee    if    sufficient 

Drayton,  In  re,  4  McCord,  46;  2  Wms.  assets  come  to  him  from   the  original 

Exrs.  255,  and  cases  cited.  estate   or  from   the   estate   of  the  first 

2  See    statutes   of    California,    Mass.,  executor.     Windsor  z^.  Bell,  61  Ga.  671. 
Vermont,  Pennsylvania,  etc.;    Prescott         ^  Navigation  Co.  v.  Green,  3  Dev.  L. 

V.  Morse,  64  Me.  422;   Scott  v.  Fox,  14  434. 

Md.  388;    Farwell  v.  Jacobs,  4  Mass.         *  Worth  v.  McAden,  i  Dev.  &  B.  Eq. 

634.       As   to  jurisdiction   under   such  199. 

56 


CHAP.  I.]       APPOINTMENT  OF  EXECUTORS.  §  44 

appointment  to  an  office  there  must  be  two  parties  at  least ; 
and  in  the  first  instance  no  one  is  bound  to  undertake  private 
responsibilities  which  another  seeks  to  fasten  upon  him.  The 
office  of  executor  is  a  private  trust,  devolving  upon  one  indi- 
vidual by  another's  selection,  and  not  by  act  of  the  law  ;  and 
hence  the  office  may  be  accepted  or  refused  at  discretion.^ 

The  time  of  acceptance  or  refusal  of  an  executorship  is 
properly  deferred  to  the  date  when  the  will  comes  into  opera- 
tion ;  that  is  to  say,  when  the  testator  is  dead,  and  the  will 
ought  to  be  admitted  to  probate  and  some  one  undertake  the 
responsibility  of  settling  the  estate.  Hence,  one's  promise 
during  the  lifetime  of  the  testator  to  accept  such  trust  will 
not  conclude  him.^  Possibly  circumstances  might  show  a 
consideration  given  for  such  a  promise,  so  as  to  involve  the 
party  refusing  in  a  legal  liability  to  the  estate  for  the  breach ; 
and  if  a  legacy  was  given  him  under  the  will  as  executor,  and 
in  consideration  of  such  service  on  his  part,  he  must  needs 
forfeit  it  by  his  refusal  to  serve.^  But  every  presumption 
favors  a  mutual  postponement  of  one's  final  decision  to  serve 
until  the  contingency  of  death  happens,  and  the  person 
named  as  the  decedent's  executor  may  fitly  make  up.  his  mind 
whether  to  serve  or  not,  if,  indeed,  he  be  the  survivor  and 
capable  of  serving  at  all.  And  hence,  as  a  rule,  one  may  re- 
nounce a  trust  to  which  he  is  nominated  under  a  will  without 
forfeiting  any  legacy  which  is  left  to  him  simply  as  an  indi- 
vidual, and  upon  no  manifest  requirement  that  he  shall  serve.* 

The  executor's  acceptance  of  his  appointment  is  signified 
by  proving  the  will  in  court  and  taking  out  letters  testamen- 
tary.^ How  all  this  should  be  done  will  presently  appear.^ 
But  so  important  is  it,  in  the  interests  of  an  estate,  that  a  dead 

1  Lowry  v.  Fulton,  9  Sim.  115;  Slaney  v.  Watney,  L.  R.  2  Eq.  418. 
Lewin  Trusts,  161,  162;  i  Wms.  Exrs.  The  right  to  "renounce"  an  executor- 
274.  An  executor  cannot  refuse  his  ship  exists  only  before  one  receives  let- 
office  in  part;  he  must  refuse  entirely  ters  testamentary.  3  Demarest  (N.  Y.) 
or  not  at  all.  2  Roll.  Rep.  132;  i  Wms.  164.  See  peculiar  right  to  retract  a 
Exrs.  282;  Thornton  v.  Winston,  4  renunciation  under  the  New  York  code. 
Leigh,  152.  lb. 

2  Doyle  V.  Blake,  2  Sch.  &  Lef.  239.  ^  Lewin  Trusts,   167;    3  Redf.  Wills, 

*  See  Slaney  v.  Watney,  L.  R.  2  Eq.     2d  ed.  529. 
418.  ®  See  next  c. 

*  PoUexfen  v.   Moore,   3  Atk.  272; 

57 


§  45  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

person's  will  should  be  placed  promptly  upon  record,  if  he  has 
left  one,  and  his  estate  committed  for  settlement,  that  from 
very  early  times  the  ordinary  was  empowered  in  England  to 
summon  any  person  before  him  who  had  been  named  execu- 
tor under  the  will  of  the  deceased,  and  by  summary  process 
compel  him  to  prove  or  refuse  the  testament ;  punishing  him 
for  contempt  if  he  refused  to  appear ;  ^  an  authority  which  has 
been  transferred  to  the  new  courts  of  probate  in  that  coun- 
try,2  and  is  exercised  generally  by  courts  of  similar  jurisdic- 
tion in  the  United  States.^  It  is  the  policy  of  such  statutes 
to  require  the  person  thus  named  to  decide  speedily  whether 
he  will  accept  or  decline  the  trust ;  and  in  the  latter  event,  or 
where  he  unreasonably  neglects  after  due  citation  to  appear, 
the  court  takes  heed  that  the  probate  of  the  will  is  pursued, 
and  thereupon  commits  the  representation  of  the  testator  and 
the  administration  of  his  estate  as  though  no  such  person  had 
been  named  executor ;  or,  if  the  will  ought  not  to  be  admitted 
to  probate,  proceeds  as  in  other  cases  of  intestacy.*  By  such 
procedure,  co-executors,  or  executors  in  succession,  may  be 
passed  over,  and  the  associate  or  substitute  may  be  qualified 
by  the  court ;  or,  instead,  an  administrator  with  the  will  an- 
nexed, or  a  general  administrator,  as  the  state  of  facts  and 
legal  consistency  may  require.^ 

S  45.    The  same  Subject;   Death  equivalent  to  a  Renunciation. 

—  The  death  of  the  sole  executor  named  in  the  will,  before 
having  either  taken  or  renounced  probate,  leaves  a  vacancy, 
whether  the  death  occurred  during  his  testator's  life  or  later, 
which  must  be  supplied  as  in  case  of  a  formal  renunciation.^ 


1  See  Stats.  Hen.  8,  c.  5,  §  8,  i  Edw.  ^  Where  an  executor  of  a  deceased 
6,  c.  2,  cited  I  Wms.  Exrs.  274;  also  Stat,  executor  is  the  rightful  representative 
53  Geo.  3,  c.  127,  as  to  punishment  for  by  law  (see  supra,  §  43),  he  may  thus 
contempt  in  the  ecclesiastical  court.  be  admitted  by  reason  of  the  refusal  or 

2  Act  of  1857,  erecting  the  court  of  neglect  of  the  co-executor.  Lorimer, 
probate;   supra,  %  14.  Goods  of,  2  Sw.  «i  Tr.  471;   Noddings, 

8  Supra,  §  II.  Goods  of,  2  Sw.  &  Tr.  15. 

*  Stat.   21    &  22   Vict.    c.   95,  §    16.  **  lb.     The  executor  of  the  executor 

And  see  post  as  to  probate  appointments  cannot  fill  the  office  as  the  law  usually 

of  executor  or  administrator.  stands  at  this  day.     Supra,  §  43. 

58 


CHAP.  I.]       APPOINTMENT  OF  EXECUTORS,  §  46 

§  46.  The  same  Subject ;  Refusal  of  Record ;  Constructive 
Refusal  or  Acceptance.  —  Probate  procedure,  under  statutes 
such  as  we  have  alluded  to,  ought  readily  to  establish  the  fact 
of  an  executor's  refusal  or  acceptance  of  his  office  in  most 
instances.^  The  fact,  however,  should  be  matter  of  judicial 
supervision,  and  hence  of  judicial  record.  A  formal  renun- 
ciation of  the  trust,  signed  by  the  executor  named  for  it  and 
filed  of  record,  will  commonly  suffice  for  that  purpose.  Such 
a  writing  or  some  judgment  of  record,  reciting  why  the  for- 
mality was  dispensed  with,  ought,  in  sound  probate  practice, 
to  precede  the  granting  of  letters  testamentary  or  adminis- 
tration to  another.^ 

With  such  preliminaries  now  regularly  pursued,  and  the 
removal  or  resignation  of  executors,  moreover,  being  more 
readily  procured  in  modern  probate  practice  than  when  the 
distrusted  spiritual  courts  exercised  jurisdiction,  some  of  the 
old  English  precedents  which  compelled  executors  to  serve,  to 
the  detriment  of  estates,  on  the  theory  that  one  had  construc- 
tively accepted  his  office,  have  passed  into  oblivion.  It  was  for- 
merly ruled,  indeed,  that  if  an  executor  had  once  administered 
at  all,  the  ordinary  had  no  discretion  to  accept  his  refusal  and 
appoint  another  in  his  stead.^  But  the  true  theory,  for  these 
days,  appears  to  be  rather  that  if  the  person  named  as  executor 
undertakes  to  administer  while  neglecting  to  prove  the  will, 
to  procure  his  letters,  and  to  qualify  (if  so  the  statute  requires) 
by  giving  a  bond,  he  ought  to  be  treated  as  executor  only  so 

^  Statutes  are  sometimes  quite  explicit  bins  v.  Lathrop,  4  Pick.  33.  In  English 
as  to  form.  In  New  York,  for  instance,  practice,  the  person  renouncing  the 
the  writing  should  be  attested  by  two  office  takes  oath  that  he  has  not  in- 
witnesses  and  acknowledged  or  other-  termeddled  with  the  effects  of  the  de- 
wise  proved  and  tiled.  Redf.  Sur.  Pr.  ceased.  But  no  such  oath  is  required 
141.  But  in  Massachusetts,  and  some  in  parts  of  the  United  States,  nor  does 
other  States,  the  instrument  is  more  like  it  appear  desirable  to  obstruct  the  issue 
a  simple  letter  to  the  judge.  English  of  letters  to  another  because  of  any  such 
practice  dispenses,  as  does  the  Ameri-  omission  to  make  oath.  See  i  Wms. 
can,  in  general,  with  the  use  of  a  seal.  Exrs.  282;  Toller,  41,  42.  Neglect  to 
Boyle,  Goods  of,  3  Sw.  &  Tr.  426.  Re-  qualify  may  be  construed  under  favor- 
nunciation  should  be  over  the  party's  ing  circumstances  into  a  refusal  to  serve, 
own  signature;  but  in  extreme  cases  the  Uldrick  v.  Simpson,  l  S.  C.  283. 
writing  may  be  executed  by  an  attorney.  ^i  Wms.  Exrs.  277;  i  Roll.  Abr. 
Rosser,  Goods  of,  3  Sw.  &  Tr.  490.  Exrs.  c.  2;    I   Mod.  213;   i   Leon.  155; 

2  Lx)ng  V.  Symes,  3  Hagg.  776;  Steb-  i  Salk.  308. 

59 


§  4^  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

far  as  to  be  held  responsible  to  all  interested  under  the  will, 
and  to  the  court,  for  his  unauthorized  and  injudicious  acts  ; 
that  otherwise,  whether  by  his  renunciation,  resignation,  or 
removal,  a  vacancy,  if  desired  by  himself  or  desirable  on  other 
grounds,  should  be  declared.^  Yet,  if  the  executor  thus 
administering  has  acted  in  good  faith,  with  good  excuse  and 
not  injuriously,  and  desires  to  fully  qualify  for  the  office,  and 
protect  his  acts,  this  is  a  different  thing ;  we  speak  only  of  a 
constructive  acceptance,  such  as  binds  one  legally  to  continue 
in  office  against  his  own  will  and  where  the  court  considers 
it  detrimental  to  the  interests  of  the  estate.  Renunciation 
of  the  trust,  according  to  modern  probate  practice,  is,  as 
nearly  as  possible,  referred  to  the  date  of  proceedings  for 
probate  of  the  will,  and  made  tantamount  to  a  refusal  to 
qualify  in  the  probate  court. ^ 

One  who  has  intermeddled  with  the  estate  of  the  deceased, 
like  an  executor  dc  son  tort,  may,  however,  as  it  is  held,  be 
debarred  at  the  discretion  of  the  court  from  renouncing  the 
trust  and  its  responsibilities  afterwards,  and  claiming  that  he 
has  not  intended  to  serve  ;  for  the  right  to  elect  on  his  part, 
whether  to  accept  or  refuse  the  office,  may  be  determined  by 
acts  and  conduct  on  his  own  part  amounting  to  an  estoppel, 
irrespective  of  formal  proceedings  in  probate.  Hence,  the 
rule,  that  whatever  the  executor  does  with  relation  to  the 
estate  of  his  testator,  showing  his  intention  to  assume  the 
trust  confided  to  him,  may  be  alleged  as  evidence  that  he 
had  already  elected  to  take  upon  him  the  executorship.^  As 
where  he  takes  possession  and  converts  goods  of  the  testa- 
tor's estate  to  his  own  use,  claiming  that  they  belong  to  the 

1  On  general  principles  of  equity  as  died  with  the  effects,  and  the  record 
well  as  at  law,  such  a  person  is  liable  to  cancelled.  Badenach,  Goods  of,  3  Sw. 
others  for  his  acts.  Doyle  v.  Blake,  &  Tr.  465.  But  the  oath  of  non-inter- 
2  Sch.  &  Lef.  237;  Parsons  7'.  Mayesden,  meddling  is  not  part  of  the  renuncia- 
I  Freem.  151;  Read  z^.  Truelove,  Ambl.  tion  in  American  as  in  English  pracr 
417.     And  see  post  as  to  the  executor  tice. 

de  son  tort.    But  parties  aggrieved  have  ^  I  Wms.  Exrs.  279;   Godolph.  pt.  2, 

not   the   security   of  a   bond,    etc.,    to  c.  8,  §§  i,  6;    Raynor  v.  Green,  2  Curt, 

which  probate  law  may  have  entitled  248;   Van  Home  v.  Fonda,  5  John.  Ch. 

them.  .  388;   Vickers  v.  Bell,  4  De  G.  J.  &  S. 

2  Renunciation  held  invalid  in  Eng-  274.  As  to  the  executor  de  son  tort, 
lish  practice,  where  one  had  intermed-  see  c.  post. 

60 


CHAP.  I.]       APPOINTMENT  OF  EXECUTORS.  §  4/ 

estate ;  ^  (otherwise,  however,  where  he  has  claimed  them  as 
his  own,  since  this  would  show  an  intention  on  his  part  in- 
consistent with  administering; ;  2)  and  where  too  he  adminis- 
ters on  such  goods,  or  under  some  misapprehension  takes 
a  stranger's  goods  for  that  purpose,^  collects  debts,  pays 
claims  and  legacies,  or  even  represents  himself*  as  thus  pre- 
pared to  act  on  behalf  of  the  estate.  On  the  other  hand,  a 
constructive  refusal  has  sometimes  been  inferred  by  acts  and 
omissions  of  the  person  named  executor.  Thus,  it  is  held 
that  the  executor's  neglect  for  a  long  time  to  take  out  let- 
ters and  prove  the  will,  when  he  might  have  done  so,  amounts 
to  refusal.^  And  long  delay  to  take  such  steps  ought  thus 
to  be  construed,  in  the  interest  of  all  concerned,  where  there 
has  been  meanwhile  no  intermeddling  with  the  estate  on  his 
part,  and  he  has  not  suppressed  the  will.  Again,  it  may  be 
presumed,  where  the  same  party  was  named  executor  and 
trustee  under  the  will,  and  has  qualified  and  acted  in  the 
latter  capacity  but  not  in  the  former,  that  he  accepted  the 
one  trust  and  declined  the  other,  and  vice  versa.^ 

§  47.  The  same  Subject ;  Constructive  Acceptance  or  Refusal 
not  favored  in  Modern  Probate  Practice.  —  On  the  whole,  how- 
ever, theories  of  constructive  refusal  or  acceptance  are  hardly 
consistent  with  our  modern  probate  practice ;  they  may 
serve  to  establish  presumptions  where  public  records  are 
lost,  or  to  facilitate  the  course  of  justice  in  dealing  with  an 

1  lb.;  Wms.  Exrs.  279.  **  See   Williams  v.  Gushing,   34  Me. 

2  Bi^c.  Abr.  Executors,  E,  10.  370;    Deering  v.  Adams,  37  Me.  264. 
8  Bac.  Abr.  Executors,  E,  10;   I  Wms.     A  judge  of  probate  named  as  one  of  the 

Exrs.  279.  executors  under  a  will,  shows,  by  acting 

*  Long  V.  Symes,  3  Hagg.  771 ;   Vick-  as  judge  in  admitting  the  will  to  probate 

ers  V.  Bell,  4  De  G.  J.  &  S.  274.     But  and  qualifying  the  co-executors,  that  he 

assisting   a  co-executor  who  has  been  declines  to  serve.     Ayres  v.  Weed,  16 

duly  appointed,  as  any  attorney  or  agent  Gonn.  291.     Refusal  to  act  as  executor 

might  do,  is  not  tantamount  to  electing  may  be  implied  without  record  evidence 

to  serve  as  an  executor.     Orr  v.  New-  or    express    declaration.      Solomon    v. 

ton,  2  Gox,   274.     But   cf.   \    V.  Wms.  Wixon,    27    Conn.    291;    Thornton    v. 

241,  note  to  6th  ed.,  cited  in   i   Wms.  Winston,  4  Leigh,  152;   Ayres  v.  Gline- 

Exrs.  280.  felter,  20  111.  465 ;   Uldrick  v.  Simpson, 

^  As  for  twelve  months.     Bewacorne  I  S.  C.  283. 
7/. Carter,  Moore,  273.  For  twenty  yeais. 
Marr  v.  Play,  2  Murph.  85. 

61 


§  47  EXECUTORS    AND   ADMINISTRATORS.  [PART    II. 

intermeddler  or  an  indifferent  nominee,  according  as  the 
interests  of  creditors  and  legatees  may  demand.  Under  both 
English  and  American  statutes,  at  the  present  day,  summary 
proceedings  are  available  in  the  court  of  probate  jurisdiction 
to  compel  the  person  named  as  executor  to  prove  the  will 
and  qualify,  and  in  case  of  his  unreasonable  neglect  to  appedr 
to  commit  the  trust  to  others  just  as  if  he  had  formally  de- 
clined.^ Such  proceedings  render  acceptance  and  refusal  of 
an  executorship  matter  of  public  record,  and  discourage  legal 
inferences  from  acts  and  conduct  of  the  nominee  in  pais. 
Responsible  as  an  executor  may  be  for  his  acts  and  negli- 
gence respecting  the  trust  before  he  has  been  duly  qualified, 
modern  policy  disinclines  to  force  one  to  serve  as  executor 
against  his  will  or  regardless  of  the  true  welfare  of  the  estate, 
provided  there  are  others  at  hand  competent  and  ready  to 
assume  the  management.  Such  trusts,  in  the  United  States 
at  least,  being  now  compensated,  the  office  of  executor  be- 
comes far  less  burdensome  than  in  old  times  when  one  was 
selected  to  perform  these  pious  duties  as  a  last  favor  to  his 
dying  friend.  And  while,  as  matter  of  general  law,  one  who 
has  proved  the  will,  received  letters  testamentary,  and  fully 
qualified  in  court,  cannot  afterwards  renounce  the  executor- 
ship of  his  own  accord  or  divest  himself  of  its  duties,^  our 
local  statutes  now  provide  that  executors,  as  well  as  adminis- 
trators, may  afterwards  resign  or  be  removed  from  office, 
when  in  the  discretion  of  the  probate  court  it  appears 
proper.^  One's  renunciation  has  been  accepted  in  some 
instances  after  probate  of  the  will  but  before  qualification  ;  * 
and  if  a  bond   with  sureties   must  be  furnished  under  the 


^  See  21  &  22  Vict,  c.95,  §  16;  i  Wms.  to  resignation  and  removal  of  executors 

Exrs.  275.  and  administrators,  see  c.  b,  post.     See 

2  Sears  v.  Dillingham,  12  Mass.  358;  also  Newton  v.  Cocke,  10  Ark.  169. 
Washington  v.  Blunt,  8  Ired.  Eq.  253.  *  Miller  v.   Meetch,  8  Penn.  St.  417; 

2  Thus    is    it    in    Massachusetts   and  Davis  v.   Inscoe,   84  N.  C.  396.     The 

New    Hampshire.     Thayer   v.    Homer,  particular  form   of  renunciation  is  not 

II    Met.    104;    Morgan    v.   Dodge,  44  important.     Commonwealth  v.  Mateer, 

N.  H.  258.     Nor  need  the  appointment  16  S.  &  R.  416.     But  the  New  York 

of  a  successor  await  the  settlement  of  statute  requires  renunciation  to  be  for- 

the  outgoing  executor's  accounts.    Har-  mally  executed  in  presence  of  witnesses, 

rison  v.  Henderson,  7  Heisk.  315.     As  2  N.  Y.  R.  S.  §  370, 

62 


CHAP.    I.]  APPOINTMENT   OF    EXECUTORS.  §   50 

local  Statute,  the  inconvenience  of  furni.shing  a  bond  such 
as  the  court  requires  may  furnish  good  reason  for  renouncing 
at  the  last  moment. 

§  48.  Executor's  Right  to  renounce  not  to  be  exercised  cor- 
ruptly, nor  for  Sinister  Objects.  —  An  agreement  made  with 
persons  in  interest  before  a  testator's  death,  and  contrary  to 
his  expressed  wishes,  by  one  named  as  executor,  to  renounce 
the  executorship  for  a  stated  consideration,  is  contrary  to 
public  policy  and  void.^  Nor  has  one  named  as  executor  any 
right,  by  mispleading  or  acquiescence  in  the  unfounded  claim 
of  another,  to  change  the  lawful  course  of  substitution  or 
administration  in-  his  stead.^  In  general,  any  agreement  for 
a  consideration  to  renounce  an  executorship  is  illegal,  and  a 
court  of  equity  will  refuse  to  enforce  it.^ 

§  49.    Whether  an  Executor  renouncing  may  exercise  a  Power. 

—  Williams,  in  his  excellent  work  on  executors  and  adminis- 
trators, doubts  whether,  where  a  power  is  given  to  executors, 
they  may  renounce  probate,  and,  at  the  same  time,  exercise 
the  power,  unless  the  power  was  conferred  upon  them  per- 
sonally  and  without  reference  to  the  office  of  executor.^  But 
he  admits  that  some  eminent  authorities  point  to  the  con- 
trary conclusion.^ 

§  50.  Retraction  after  a  Renunciation ;  Subsequent  Appoint- 
ment of  the  Executor.  —  Where  an  executor  upon  his  own 
petition  has  been  excused  from  the  office,  and  has  formally 
renounced  the  trust,  he  cannot,  after  the  issuance  of  letters 

^  Staunton  v.  Parker,  26  N.  Y.  Supr.  who  is  executor  or  administrator  under 
55-  »•  will  has  by  no  means  the   power  of 
2  Nelson   v.    Boynton,   54   Ala.   368.  selling  the  testator's  real  estate,  by  in- 
8  Ellicott  V.  Chamberlin,  38  N.  J.  Eq.  ference.     See  Clark  v.  Tainter,  7  Cush. 
604.  567.    One  may  therefore  have  the  power 
*  VVms.  Exrs.  286,  287.  to  sell  conferred  upon  him  as  something 
5  Sugden    Powers,    138,    6th    ed.;     2  not  annexed  to  the  will  or  his  accept- 
Prest.   Abstr.   264.      Perkins,  No.  548,  ance  or  declination  of  the  executorship, 
suggests  the  point  of  distinction  as  Mr.  Mr.Williams's  distinction  appears,  there- 
Williams  has  taken  it.     And  see  Keates  fore,  to  this  writer  a  just  one  in  the  sense 
V.  Burton,   14  Ves.  434,  per  Sir  Wm.  that  the  testator's  intention  should  be 
Grant.     It  should  be  admitted  that  one  resorted  to  in  such  a  case. 


§   50  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

to  another,  retract  his  renunciation  at  pleasure.  His  election 
once  made,  is,  for  the  time  being,  irrevocable.^  But  a  fresh 
opportunity  may  often  be  afforded  him  to  take  the  trust, 
should  a  vacancy  in  the  office  afterwards  occur.  As,  where 
the  co-executor  named  under  the  will  qualified  alone  and  was 
afterward  removed  for  statute  cause,  or  died ;  ^  or  in  case  the 
person  renouncing  in  the  first  instance  was  named  sole  execu- 
tor and  sole  legatee  in  the  will,  and  administration  with  the 
will  annexed  had  been  granted  upon  his  renunciation  to  one 
of  the  next  of  kin  who  presently  died  insolvent  and  intestate.^ 
In  the  former  instance,  letters  of  administration  never  having 
issued  before  the  executor's  retraction  took  place,  letters  tes- 
tamentary would  be  properly  issued  to  him  ;  but,  in  the  latter, 
administration  has  once  been  granted,  and  consequently  the 
executor  properly  takes  instead  administration  de  bonis  non, 
with  the  will  annexed.  Administration  with  the  will  annexed 
having  once  been  duly  granted,  in  fact,  there  would  be  no 
further  opportunity  left  to  the  renouncing  party  to  qualify  as 
executor ;  and  yet,  under  the  broad  discretion  of  the  court, 
where  a  new  administrator  upon  an  unadministered  estate  has 
to  be  appointed,  a  sole  legatee  may  well  be  pronounced  in 
such  an  exigency  the  best  suitable  for  the  trust,  and  be  ap- 
pointed to  the  vacancy  accordingly  as  an  administrator.* 

In  practice,  an  executor's  retraction  of  his  refusal  has  been 
treated  with  considerable  indulgence,  so  long  as  no  other  grant 
of  letters  supervened.  Thus,  upon  consent  of  all  the  parties 
interested  (though  not  otherwise)  an  executor  who  had  refused 
the  trust  in  order  to  become  an  admissible  witness  for  sus- 
taining the  validity  of  the  will,  was  in  the  English  spiritual 
court  regularly  allowed  to  withdraw  his  refusal  after  the  suit 
was  over  and  receive  letters  testamentary  ;  ^  palpable  evasion, 

1  Thornton,     Goods    of,  Add.    273;  2  R.  I.  103;   Maxwell,  In  re,  3  N.  J. 

Trow  V.  .Shannon,  59  How.  (N.  Y.)  Pr.  Eq.  611;    Davis  v.  Inscoe,  84  N.  C.  396. 

214.     The  old  practice  was  more  favor-  ^  Wheelwright,   Goods    of,    L.    R.    3 

able  to  permitting  those  who  had  once  P.  D.  71. 

refu'ied  to  come  in  afterwards  and  act.  *  See  c. post  as  to  administration;   i 

Wms.  Exrs.  284;   4  M.  &  Gr.  814,  per  Wms.  Exrs.  283.     Cf.  Thornton  t^.  Win- 

Tindal,  C.  J.  ston,  4  Leigh,  152. 

-  I    Robert.   406;    Codding  v.  New-  ''  I    Wms.    Exrs.    7th   ed.    283;    Mc- 

man,  63  N.  Y.  639;    Perry  v.  DeWolf,  Donnell  v.  Prendergast,  3   Hagg.   212, 

64 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS.  §  5 1 

though  this  might  be,  of  the  rule  which  forbade  interested 
persons  to  testify  in  court.  And  even  supposing  letters  of 
administration  to  have  issued,  if  this  were  upon  some  misap- 
prehension or  error  deserving  correction,  or  for  some  tempo- 
rary purpose  not  inconsistent  with  probate,  and  before  the 
executor  can  be  said  to  have  refused  the  trust,  this  party  may 
have  the  administration  revoked  or  superseded  and  letters 
testamentary  issued  to  him  ;  as,  for  instance,  should  a  will 
turn  up  after  the  grant  of  letters,  as  upon  an  intestate's  estate, 
or  after  a  special  administration.^  This  power  of  retraction 
within  such  limits  is  matter  of  right,  and  not  of  mere  privi- 
lege.2 

§  5I.  Renunciation  where  Several  Executors  are  named. — 
Where  two  or  more  are  named  co-executors  under  a  will,  all 
must  duly  have  renounced  or  have  defaulted  upon  citation  to 
the  same  result,  before  the  will  can  be  treated  as  in  effect  a 
will  without  an  executor,  so  as  to  be  properly  committed  to 
an  administrator  with  the  will  annexed.  The  refusal  of  one 
co-executor  does  not  exclude  the  others,  nor  prevent  succes- 
sion, institution,  or  a  sole  execution  of  the  trust,  as  the  testa- 
tor's wishes  or  the  just  interests  of  the  estate  may  require. 
And  although,  as  we  have  already  indicated,'^  a  co-executor 
who  has  renounced  the  office  may  afterwards  retract  the  re- 
nunciation so  as  to  succeed  to  a  vacancy  should  one  occur 
(for,  here,  the  situation  of  the  trust  having  changed,  one  does 
not  stultify  himself  by  recalling  his  refusal),  the  better  prac- 
tice allows  the  co-executor's  refusal  to  slumber  on  unless  he 

216;  Thompson  v.  Dixon,  3  Add.  272.  tary,  and    have   the  administration  re- 
Retraction  allowed   at  any  time  before  voked.     i   Leon.  90;   Godolph.  pt.  2,  c. 
the  grant  of  letters  to  another.     Rob-  31,  §  3.     But  the  policy  of  later  legisla- 
ertson  v.  McGloch,  1 1  Paige,  640.  tion  is  (requiring  probate  of  the  will  as  of 
1  Taylor  v.  Tilibatts,  13  B.  Mon.  177;  course)  to  treat  the  executor  named  as 
2  Wms.  Exrs.  283.     Under  the  old  and  such  who  docs  not  respond   to  the  cita- 
defective  English  practice  in  such  mat-  tion,  but  neglects  inexcusably  to  appear 
ters,  an  executor  "ho  had  neither  actu-  and  perform   his  duty,   as  having  for- 
ally    nor    constructively    renounced  his  feited  all  right  to  the  executorship.      21 
appointment,  but  had  merely  defaulted  &  22  Vict.  c.  95,  §  16. 
to  come  in  on   citation  and  prove  the  "^  Casey  v.  Gardiner,  4  Bradf.  13. 
will,  might  at  any  future  time  appear  to  ^  Supra,  §  50. 
prove  the  will,  obtain  letters  testamen- 


§   5-  EXECUTORS    AND    ADMINISTRATORS.  [PAKT    II. 

chooses  to  arouse  it  before  the  opportunity  be  past.^  One  of 
the  co-executors  having  renounced,  letters  will  be  granted  to 
the  remaining  executor,^  and,  unless  it  appears  to  the  court 
imprudent,  to  him  alone. 

§  5--  Executors,  how  appointed  by  the  Court;  Letters  Testa- 
mentary. —  This  chapter  has  shown  us  that  executors  are  ap- 
pointed, or  rather  designated,  by  the  testator's  will.  The  full 
appointment,  according  to  modern  English  and  American 
practice,  comes  from  the  court  of  probate  jurisdiction,  which, 
recognizing  and  confirming  the  testator's  selection,  clothes 
the  executor  therein  narned  with  plenary  authority  by  issu- 
ing letters  testamentary  to  him.  Letters  testamentary  are 
granted  usually  in  connection  with  decreeing  the  probate  of 
the  will ;  and,  as  our  next  chapter  will  show,  one's  last  testa- 
ment should  be  presented  for  probate,  whether  the  executor 
named  be  willing  to  serve  and  competent  for  the  trust  or  the 
reverse.  A  will  is  not  necessarily  executed  by  an  executor, 
nor  dependent  for  enforcement  of  its  provisions  upon  any 
survivor  of  the  deceased.  Hence,  according  to  our  present 
probate  procedure,  an  executor  derives  his  oflfice  (i)  from  a 
testamentary  appointment,  which  (2)  is  confirmed  by  a  decree 
of  the  probate  court,  and  the  issue  of  letters  testamentary  to 
him  accordingly. 

1  Judson   V.   Gibbons,  5  Wend.    224.  before     administration    de    bonis    non 

It  was  formerly  thought  that  the  grant  passes   the   seals,   if  he   would   supply 

of  administration  would  be  void  upon  the  vacancy,     i   Robert.  406;    i  Wms. 

such  a  vacancy  in  the  office  unless  the  Exrs.  285;   Venables  v.  East  India  Co., 

executor  surviving  renounced  the  trust  2  Ex.  633. 

once  more  in  due  form.  But  this  super-  ^  Miller  v.  Meetch,  8  Penn.  St.  417. 
serviceable  regard  for  a  testator's  wishes  An  executor  who  renounces,  being  a 
is  not  approved  by  the  later  and  sounder  creditor  of  the  estate,  is  not  debarred 
authorities,  which  hold  that  the  surviv-  of  the  usual  remedies  of  creditor.  Raw- 
ing executor  must  come  in,  retract  his  linson  v.  Shaw,  3  T.  R.  557. 
renunciation,  and  ask  to  be  appointed 

66 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  53 


CHAPTER   II. 


PROBATE    OF    THE    WILL. 


§  53-  Duty  of  producing  the  "Will  ;  Fundamental  Importance 
of  determining  Testacy  or  Intestacy,  etc.  —  The  first  and  most 
pressing  duty  of  every  executor  nominated  as  such  is  to  have 
the  will,  by  virtue  of  which  he  claims  the  rights  of  representa- 
tiv^e,  admitted  to  probate.  And  so  fundamental  to  jurisdic- 
tion upon  the  estate  of  a  deceased  person  is  it  to  ascertain 
whether  such  person  has  died  testate  or  intestate,  and  if  tes- 
tate, what  was  his  last  will  and  testament,  what  instrument, 
in  truth,  made  and  subscribed  by  him  with  due  formalities 
while  capable  and  free  to  exercise  the  momentous  power  of 
testamentary  disposition,  embodied  his  latest  wishes  ;  so  im- 
portant is  it  to  know  whether  he  has  chosen  in  fact  to  have 
his  property  settled  and  distributed  according  to  his  own 
scheme,  or  to  let  the  law  of  intestacy  operate,  that  the  per- 
sonal claim  of  this  or  that  individual  to  execute  or  administer 
the  estate  is  but  secondary  in  importance. 

Hence  the  will,  whoever  may  be  its  temporary  custodian, 
should  be  properly  produced  in  court  after  the  testator's 
death,  in  order  that  its  validity  may  be  finally  determined, 
and  incidentally  the  rights  of  all  persons  claiming  a  title  and 
interest  in  the  decedent's  estate.  The  executor  named  in  the 
instrument  is  the  most  suitable  person  for  such  temporary 
custody  and  formal  production.  But  wills  are  sometimes  re- 
ceived, under  appropriate  statutes,  from  such  as  may  have 
chosen  during  lifetime  to  deposit  the  same  confidentially  in 
the  probate  registry ;  or  the  instrument  is  committed  to  the 
care  of  an  attorney,  or  some  confidential  friend  ;  or  it  is 
lodged  among  one's  effects  or  business  papers,  so  that  some 
member  of  the  family,  a  partner,  or  a  business  clerk,  may  hap- 
pen first  to  light  upon  it  ;  or  perchance  it  may  have  been 
carelessly  or  artfully  placed  where  only  accident  is  likely  to 

^^7 


§    54  EXECUTORS    AND    ADMINISTRATOR?.  [PART    II. 

discover  it,  and  the  finder  may  prove  an  utter  stranger.  In 
any  and  all  of  these  situations,  and  under  whatever  other  cir- 
cumstances the  will,  or  what  purports  to  be  the  will,  of  a 
party  deceased  may  be  found,  the  custodian,  come  he  casu- 
ally or  rightfully  into  possession,  is  bound  to  produce  and 
surrender  it  in  such  a  manner  that,  in  all  reasonable  expecta- 
tion, it  shall  duly  and  speedily  be  brought  before  the  proper 
tribunal  having  probate  jurisdiction  of  the  estate.  He  must 
not  clog  the  surrender  of  that  instrument  with  conditions  of 
pecuniary  reward ;  he  must  not  connive  with  others  at  its 
suppression  or  concealment  ;  he  must  not  act  as  though  the 
paper  belonged  to  himself,  or  to  any  particular  person  inter- 
ested in  the  estate,  or  even  to  the  executor  named  himself  ; 
but  treat  it  as  a  document  which  involves  the  rights  of  all 
concerned  in  the  estate,  should  either  its  validity  or  invalidity 
be  established,  and  of  those,  besides,  who  should  properly 
manage  and  settle  the  estate  in  one  contingency  or  the  other, 
as  an  instrument  whose  possession  for  the  time  being  casts 
upon  him  a  perilous  responsibility.  Most  custodians  may 
well,  doubtless,  surrender  the  paper  to  the  executor  named 
therein  ;  but  the  duty  does  not  cease  here  ;  and  by  fair  and 
seasonable  notice,  if  prudence  and  good  faith  so  require,  to 
the  nearest  relatives  of  the  deceased,  or  others  interested,  and 
giving  the  fact  that  the  instrument  has  been  found  due  pub- 
licity, one  should  procure  what  the  policy  of  the  law  now 
requires,  its  production  for  probate  before  the  proper  tribunal.^' 

§  54.  Procedure  against  Persons  suspected  of  secreting,  de- 
stroying, etc,  the  Will.  —  Local  statutes  in  modern  times  quite 
generally  affix  criminal  penalties  to  the  intentional  suppres- 
sion, secretion,  or  destruction  of  a  dead  person's  will  by  any 
one  acquiring  possession  thereof.^  They  provide  also  for 
summary  proceedings  in  the  probate  court  against  any  per- 
son having  or  suspected  of  having,  or  knowing  as  to  the 
whereabouts  of  such  an  instrument ;  such  proceedings  being 

^  An  attorney  or  solicitor,  the  custo-  &  Russ.  87.     And  see  3  Redf.  Wills,  3d 

dian  of  a  will,  cannot  refuse  its  surren-  ed.  I,  2. 

der  for  probate  upon  any  claim  of  a  lien  '^  Smith    Prob.     Pract.    (Mass.)     59; 

for  unpaid  fees.     Balch  v.  Symes,  Turn.  Stebbins  v.  Lathrop,  4  Pick.  ;i^. 

68 


CHAP.  II.]  PROBATE  OF  THE  WILL,  §  55 

in  the  nature  of  an  inquisition,  so  that  one  is  cited  to  appear 
and  either  surrender  the  will  or  purge  himself  by  answering 
under  oath  such  lawful  questions  as  may  be  propounded  in 
the  premises.  Independently  of  such  legislation,  accoiding 
to  correct  reasoning,  every  court  of  competent  probate  juris- 
diction has  a  lawful  authority,  inferable  from  its  peculiar  func- 
tions, to  summon  parties  spontaneously  or  upon  the  petition 
of  any  person  interested,  for  the  purpose  of  compelling  pro- 
duction and  investigating  the  whereabouts  of  instruments 
which  ought  to  be  offered  before  such  court  for  probate,  and 
may  commit  for  contempt  those  who  refuse  to  obey  its  man- 
date.^ Where  one  is  shown  to  have  had  the  custody  of  a 
will,  he  is  presumed  to  retain  it  and  must  clear  himself  upon 
oath,  or  else  be  held  responsible  for  its  non-appearance  ;  and 
any  person  having  knowledge  as  to  the  existence  or  place  of 
deposit  of  the  will  ought  to  give  his  testimony  freely.^ 

§  55.  Death  of  Testator;  its  Effect  upon  his  Will.  —  Every 
instrument  purporting  to  be  one's  last  will  and  testament 
has  (except  in  a  few  special  instances  stated  in  the  books) 
but  an  inchoate,  incomplete,  and  ambulatory  operation  during 
the  life  of  the  person  who  makes  it  ;  changes  may  be  made 
by  his  codicil  afterwards ;  moreover,  he  may  cancel  and  de- 
stroy such  instruments  at  pleasure,  execute  a  later  will,  or 
conclude  to  dispense  with  a  will  altogether ;  provided  only 
that  he  remains  of  sound  mind  and  capacity,  and  exercises 
his  unfettered  choice  concerning  the  final  disposition  of  his 
estate.  But  the  moment  one  dies,  the  instrument  or  instru- 
ments, if  any,  which  he  has  left  duly  executed,  constitute  his 
last  will  and  testament,  and  will  acquire  conclusive  force  and 
operation  as  such  ;  and  to  prove  and  establish  what  purports 
to  be  such  last  will  and  testament,  so  that  it  may  fully  oper- 

^  3  Redf.  Wills,  3d  ed.  6;   Cas.  temp,  or  to  the  executors  named  in  the  will. 

Lee,   158;    Swinb.  pt.   6,  c.  12,  pi.  2;  For  neglect  to  do  so,  without  reasonable 

Brick's  Estate,  15  Abb.  Pr.  12.  cause  after  being  cited  for  that  purpose, 

2  A    Massachusetts    statute    requires  he  may  be  committed  to  jail,  and  will  be 

every  custodian  of  a  will,  within  thirty  held    further  liable  in  damages  to  any 

days  after  the  notice  of  the  death  of  the  party  aggrieved.     Mass.  Gen.  Stats,  c. 

testator,  to  deliver  it  into  the  probate  92,  §  16. 
court  which  has  jurisdiction  of  the  case, 

69 


§   55  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ate,  or,  more  generally,  to  ascertain  whether,  in  a  legal 
sense,  any  last  will  and  testament  was  left  at  all,  becomes,  in 
the  first  instance,  the  peculiar  province  of  the  local  probate 
court  of  his  last  domicile  ;  and,  besides,  the  full  appointment 
and  qualification  of  the  person  or  persons  who,  according  as 
he  died  testate  or  intestate,  may  be  entitled  to  manage  and 
settle  the  estate  and  represent  the  deceased.^ 

The  fact  of  the  testator's  death,  superadded  to  that  of  last 
domicile,^  is  thus  essential  to  our  modern  probate  jurisdic- 
tion. Death  is  frequently  a  fact  so  well  known  in  the  neigh- 
borhood, that  the  court  requires  no  proof ;  often  it  is  assumed 
from  the  allegations  of  the  petitioner  for  probate  and  letters ; 
and  familiar  rules  of  evidence  may  be  adduced  as  to  presump- 
tions of  death  after  a  long  absence,  usually  seven  years,  with- 
out being  heard  from.^  But  presumptions  of  death  are  only 
for  convenience  ;  and  if  the  person  on  behalf  of  whose  estate 
proceedings  were  taken  had  not  actually  died,  probate  of  the 
will  may  be  afterwards  annulled  ;  inasmuch  as  there  is  no 
jurisdiction  in  the  court  over  the  property  of  the  living,*  nor 
positive  assurance  that  a  particular  will  embodies  the  maker's 
final  disposition  of  his  property,  nor  certainty  where  he  may 
actually  reside  at  the  time  of  his  death. ^ 

^  3  Redf.  Wills,  3d  ed.   i,  2;   Wms.  ing   was   simply  precautionary  against 

Exrs.  7th  ed.  6,  10,  319.     We  have  seen  loss  of  the  instrument,  and  could  not 

that  one's  will  may  be  received  for  de-  impair  the  testator's  right  to  alter  or 

posit  under  suitable  English  and  Ameri-  subsequently  revoke.     See  Svvinb.  pt.  6, 

can   statutes,  at    the   registry  of  wills,  §  13,  pi.  I.     A  Michigan  statute  which 

while  he  is  alive.     Supra,  §  53;  2  Wms.  attempted  to  provide  for  an  ante  mortem 

Exrs.  319.     buch  statutes,  however,  only  probate  was  lately  pronounced  inopera- 

provide  a  convenient  place  of  deposit,  live.  Lloyd  v.  Chambers,  56  Mich.  236. 
The  testator,  having  the  right  to  revoke,         '^  Supra,  §  15. 

may    withdraw    the    will,   whenever   he         ^  See  supra,  pt.   I ;    2  Greenl.  Evid. 

desires,   from  such  custody,  during  his  §  278,  as  to  presumptions  and  proof  of 

lifetime.  death.     Death   is  presumptively  estab- 

The  earlier  English  books,  however,  lished  as  a  fact  by  production  of  the  pro- 
make  mention  of  proceedings  which  a  bate  of  his  will  before  a  surrogate,  and 
living  testator  might  invoke  on  his  own  the  proceedings  had  upon  such  probate, 
petition;  the  effect  of  which  was  to  have  Carroll  v.  Carroll,  6  Thomp.  &  C.  294. 
the  will  duly  recorded  and  registered  *  D'Arusement  v.  Jones,  4  Lea,  251. 
among  other  wills.  But  proof  so  ad-  ^  i  Bl.  Com.  502.  "  Nam  omne  tes- 
duced  had  not  the  effect  of  probate,  nor  tamentuin  morte  consummatum  est;  et 
could  authentication  under  seal  issue  voluntas  testatoris  est  ambulatoria  usque 
during  the  testator's  life.     The  proceed-  ad  mortem."     Co.  Litt.  H2. 

70 


CHAP.  II.]  PROn.VTE  OF  THE  WILL.  §  56 

§  56.  How  soon  after  the  Testator's  Death  should  the  "Will 
be  presented  for  Probate.  —  The  time  after  the  testator's  death 
when  his  will  should  be  presented  for  probate  must  depend 
somewhat  upon  sound  discretion  ;  distance,  the  facility  of  pro- 
curing witnesses  and  needful  testimony,  and  the  convenience 
of  the  executor  and  parties  interested,  being  circumstances  of 
no  little  consequence  in  this  connection.  Decency  requires 
delay  until  after  the  burial  has  taken  place  ;  but,  as  a  rule, 
the  will  of  a  deceased  person  should  be  produced  for  public 
custody  as  soon  after  the  funeral  as  possible  ;  whether  this 
be  in  open  court,  or  by  first  filing  the  instrument  with  the 
register,  in  order  that  citation  may  issue  for  probate  later  at 
some  convenient  court  day,  as  in  conformity  with  local  prac- 
tice. The  opportunity  for  a  postponement  of  the  judicial 
hearing  for  probate  will  suffice  for  most  purposes  of  further 
delay ;  production  of  the  instrument  by  its  individual  posses- 
sor affording  to  the  court  the  needful  primary  pledge  of  good 
faith.  For  delaying  production  of  the  instrument  is  one 
thing,  and  delaying  proof  of  the  authenticity  and  the  issuing 
of  letters  another.  English  and  American  statutes  accord  in 
affording  reasonable  time  and  opportunity  to  all  interested  in 
this  latter  respect ;  while,  as  to  the  former,  discouraging 
every  species  of  delinquency.^ 

But,  however  late,  from  one  cause  or  another,  probate  may 
have  been  delayed,  the  better  practice,  in  the  absence  of  a 
positive  statute  of  limitations,  is  to  admit  the  will  on  due 
proof,  at  any  time,  to  probate ;  ^   though  the  authenticity  of 

^  English  practice  requires  an  expla-  probate.     The  Eng.  Stat.  55  Geo.  IIL 

nation  of  the   delay  where  one  seeks  c.  184,  imposes  a  penalty  for  adniinister- 

probate  or  administration,  after  the  lapse  ing  without  proving  within  six  months, 

of  three  years   from  the  death  of  the  i  Wms.  Exrs.  319.     Thirty  days'  delay 

deceased,     i  Wms.  Exrs.  320.     On  the  after  knowledge  of  the  death  in  produc- 

other  hand,  no  probate  or  letters  shall  ing  the   decedent's  will  is  all  that  the 

issue  within   seven  days  from  the  death  policy  of  some  American  statutes  appears 

of  the  party  deceased.     lb.     American  to  tolerate.    Mass.  Gen.  Stats,  c.  92,  §  16. 

practice  and  the  tenor  of  statutes,  Eng-  ^  ^  y^\\\  niay  be  probated  in  Massa- 

lish  and  American,  requiring  a  will  to  be  chusetts  more  than  twenty  years  after 

produced  from  private  custody,  and  for-  the  testator's  death,  for  the  purpose  of 

bidding  all  intermeddling  with  an  estate  establishing  title  to  real  estate ;  although 

without  a  judicial  appointment,  all  tend  original  administration  be  confined  by 

to  hasten  the  presentment  of  the  iviil  for  statute  to  twenty  years.     Shumway  v. 

71 


§   57  EXECUTORS    AND    ADMINISTRATORS.  [PART    /I. 

ancient  instruments,  whose  establishment  would  tend  to 
disturb  estates  long  settled  in  good  faith,  ought  only  to  be 
admitted  upon  the  clearest  testimony.  In  the  absence  of 
positive  statute  there  is  no  definite  limit  to  the  time  within 
which  a  will  may  be  probated.^ 

§  57.  Primary  Probate  Jurisdiction  depends  upon  Last  Domi- 
ciie  of  Deceased;  Foreign  Wills.  —  Jurisdiction  over  the  pro- 
bate of  wills,  as  over  the  settlement  generally  of  the  estates 
of  those  dying  testate  or  intestate,  is  determined  primarily  by 
the  last  domicile  of  the  person  deceased.^  And  such  juris- 
diction being  usually  entertained  by  counties,  parishes,  or 
districts,  both  in  England  and  the  American  States,  it  follows 
that  the  county,  parish,  or  district  probate  court  of  the  testa- 
tor's last  domicile  has  exclusive  original  authority  to  pass 
upon  the  validity  of  instruments  purporting  to  constitute  his 
last  will,  to  admit  or  deny  probate  of  the  same,  and  to  grant 
letters  as  for  testacy  or  intestacy.  Of  foreign  -executors  and 
administrators,  and  their  powers,  we  shall  have  occasion  to 
speak  later ;  but  it  should  be  here  observed  that  the  probate 
jurisdiction,  rightfully  taken  in  the  proper  county  or  district, 
has  full  domestic  operation  in  the  State  or  country  of  the 
testator's  last  domicile,  and  gives  to  the  executor  or  adminis- 
trator a  corresponding  authority  to  be  rightfully  exercised. 
And  if  foreign  letters  and  authority  be  needful  for  facilitat- 
ing a  settlement  of  the  estate,  where  suit  must  be  brought 
abroad,  or  part  of  the  property  is  there  situated,  the  first 
requisite  is  to  probate  the  will,  if  there  be  one,  and  procure 
letters  testamentary  within  the  proper  domestic  jurisdiction. 
The  filing  of  a  copy  of  the  probate  of  such  will,  or  its  duly 
attested  record  serves,  in  the  foreign  probate  registry  —  with, 

Holbrook,  i  Pick.  114;  Waters  w.  Stick-  to  judicial  discretion  as  to  time,  but  all 

ney,  12  Allen,  12.     See  Van  Giesen  v.  the  circumstances  are  taken  into  con- 

Bridgford,  18  Hun  (N.  Y.)   73.       After  sideration.     I  Jarm.  Wills,  218.    See  40 

four  years  from  the  death  of  a  testator  N.  J.  Eq.  3,  where  a  surviving  husband 

a  will,  by  the  Texas  rule,  may  be  pro-  did  not  prove  his  wife's  will  and  it  was 

bated  for  the  purpose   of  perfecting   a  allowed  probate  after  his  death, 

title  although  letters  cannot  issue.    Ryan  ^  Rebhan  v.  Mueller,  114  111.  343. 

V.  Texas  Pacific  R.,  64  Tex.  239.     The  2  SuJ>ra,  §  15;    3  Redf.  Wills,  2d  ed. 

English  rule  appears  to  leave  the  matter  12,  13. 

72 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  58 

perhaps,  security  given  or  ancillary  letters  procured  besides  in 
the  foreign  jurisdiction  —  the  purpose  needful,  according  as 
the  foreign  statute  in  question  may  prescribe.' 

The  will  of  a  person  domiciled  in  a  certain  county  and 
State  or  country,  should  be  admitted  to  original  probate  in 
the  domestic  jurisdiction,  without  regard  to  the  place  where 
the  will  was  made  or  where  such  person  happened  to  die.^ 
And  the  judgment  of  the  local  court  having  original  jurisdic- 
tion ought  to  be  held  conclusive  as  to  the  probate,  unless 
v^acated  by  proceedings  on  appeal,  or  impeached  by  direct 
proceedings  for  setting  the  probate  aside.^  One  may  make 
a  will  designed  to  operate  upon  property  in  one  country  and 
another  will  for  property  in  another  country.'* 

§  58.  Testamentary  Papers  Ineffectual  until  after  Proper  Pro- 
bate; Probate  relates  back. —  In  general,  the  necessity  of  a 
probate  is  fully  sustained  by  modern  practice  in  England  and 
this  country.  The  production  of  what  purports  to  be  a  will 
can  be  of  no  legal  force  in  the  courts,  however  ancient  the 
document,  without  this  public  record  and  seal  of  authentic- 
ity ;  and  neither  the  temporal  courts  in  England,  nor  the 
courts  of  law  and  equity  in  the  United  States,  will  take  cog- 
nizance of  the  testamentary  papers,  or  of  the  rights  depen- 
dent on  them,  until  after  their  proper  probate.^ 

1  Hood  V.  Lord  Barrington,  L.  R.  6  As  to  the  mode  of  exemplification  of  a 

Eq.  218;   Carpenter  v.  Denoon,  29  Ohio  foreign  will  in  New  York  practice,  with 

St.  379;   Campbell  v.  Sheldon,  13  Pick,  petition  by  one  as  agent  or  attorney  of 

8;   Ives  V.  Allyn,  12  Vt.  589;    Bromley  the  foreign  executor  to  receive  letters 

V.  Miller,  2  Thomp.  &  C   (N.  Y.)  575;  in  his  stead,  see  Russell  v.   Hartt,  81 

Porter  v.  Trail,  30  N.  J.  Eq.  106.    Local  N.  Y.  19. 

domestic    statutes    usually    provide    for  ^  Converse  v.  Starr,  23  Ohio  St.  491. 

filing  an   authenticated    copy    of   one's  And  see  supra,  §  21. 

will,  for  domestic    convenience,  in  case  ^  Williams,  J\e,  I  Lea,  529. 

of   a  deceased    non-resident,   the   same  *  Astor,  Goods  of,  L.  R.  I  P.  D.  150. 

having  been  duly  probated  in  the  .State  ^  Rex    v.   Netherseal,   4  T.    R.    258; 

or  country  of   his   last   domicile.     But  3  Redf.  Wills,  12;   Strong  v.  Perkins,  3 

such  authentication  of  a  foreign  probate  N.  H.  517;    Wood  v.  Mathews,  53  Ala. 

is    inadmissible    if   it   appears   that   the  i  ;   Pitts  r-.  Melser,  72  Ind.  469.    A  will 

testator  was  domiciled   here  instead  of  not  regularly  probated  cannot  be  used 

abroad,  at  the  time  of  death;  fur  in  such  to  estal)lish  title  to  lands  devised.     Wil- 

case    there    should   have   been   original  lamette  Falls  Co.  7-".  Gordon,  6  Oreg.  175. 

prol)ate  here.    Stark  v.  Parker,  56  N.  11.  But  in  some  States,  contrary  to  rule, 

481 ;  Converse  v.  Starr,  23  Ohio  St.  491.  it  appears  to  be  considered  that  probate 

73 


5  59  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

Probate,  however,  having  been  duly  procured,  the  probate 
is  said  to  relate  back  to  the  time  of  the  testator's  death  ;  and 
this,  apparently,  for  the  convenience  of  the  executor  or  of  the 
administrator  with  the  will  annexed  to  whom  letters  there- 
upon issue  ;  in  order  that  his  title  and  rightful  authority  may 
be  adequate  for  the  proper  management  and  settlement  of 
the  estate,  and  so  as  to  protect  needful  acts  on  his  part  prior 
to  the  probate.^ 

§  59-  W'hat  Testamentary  Papers  require  Probate  ;  Wills  of 
Real  and  Personal  Property. —  It  is  laid  down  in  the  older 
English  books,  that  if  an  instrument  be  testamentary,  and  is 
to  oj^erate  on  personal  property,  probate  must  be  obtained 
whatever  its  form  ;  but  that  a  will  which  clearly  respects 
lands  alone  ought  not  to  be  probated  ;  while,  if  the  will  was  a 
mixed  will,  concerning  both  land  and  personal  property,  pro- 
bate is  proper,  though  such  probate  is  without  prejudice  to 
the  heirs  of  the  land.^  But  such  cardinal  distinctions,  which 
the  English  chancery  asserted  somewhat  jealously  against 
the  ecclesiastical  courts  in  times  past,  with  the  intent  of  con- 
fining the  spiritual  jurisdiction  as  closely  as  possible  to  goods 
and  chattels,  is  materially  done  av^ay,  under  the  Court  of 
Probate  Act  of  1857,  which,  seeking  to  prevent  the  mischief 
of  double  trials  of  proof  of  the  same  will,  requires  heirs, 
devisees,  and  parties  in  interest,  to  be  cited  in  wherever  the 
formal  probate  of  a  will  is  to  affect  real  estate,  and  declares 
that  such  course  having  been  pursued,  the  probate  decree, 
establishing  the  will  as  valid,  shall  bind  all  such  parties.^ 

is  not  essential  to  the  validity  of  the  will,  ^j  \Vms.  Exrs.  388,  389;  3  Salk. 
and  that  rights  may  be  protected  by  22;  2  Salk.  553.  It  is  admitted,  too, 
showing  its  validity  in  any  court.  Ar-  that  where  executors  are  nominated  in 
rington  v.  McLemore,  2)3  Ark.  759.  a  will  purporting  to  dispose  of  lands 
The  fact  that  a  will  has  not  yet  been  alone,  the  document  should  be  pro- 
proved  does  not  prevent  a  devisee  of  bated.  O'Dwyer  v.  Geare,  i  Sw.  &  Tr. 
lands  or  a  party  under  him  from  bring-  465;  Barden,  Goods  of,  L.  R.  I  P.  &  D. 
ing  ejectment.  Richards  v.  Pierce,  44  325.  And  so,  wherever  there  is  doubt 
Mich.  444.  whether  the  will  concerns  land  or  not, 
^  I  Wms.  Exrs.  293  ;  9  Co.  38  a;  since  probate  may  be  needful  in  such 
Plowd.  281  ;  Ingle  t'.  Richards,  28  Beav.  cases  and  can  do  no  harm,  i  Phillim.  8.  9. 
366;   Hood  V.  Lord  Barrington,  L.  R.  ^  i  Wms.  Exrs.  341,  388;  .\ct  20  &  21 

6  Eq.  218,  224.  Vict.  c.  77,  §  64  (1857).     The  effect  of 

74 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  GO 

In  most  parts  of  the  United  States  discrimination  between 
wills  of  real  and  of  personal  property  is  abolished,  and  by 
appropriate  statute  it  is  expressly  provided  that  no  will, 
whether  of  real  or  personal  estate,  shall  be  effectual  to  pass 
the  same,  unless  it  has  been  duly  proved  and  allowed  in  the 
probate  court  ;  and  the  probate  of  a  will  devising  real  estate 
shall  be  conclusive  as  to  its  due  execution  in  like  manner  as 
of  a  will  of  personal  estate.^  The  uniform  practice,  more- 
over, of  American  probate  courts  is  to  issue  a  citation  to  all 
heirs,  next  of  kin  and  parties  interested,  before  any  will  is  ad- 
mitted in  solemn  form  to  probate,  whether  the  testator's 
estate  consists  of  real  or  personal  property  or  both  together.^ 

§  60.  Testamentary  Papers  requiring  Probate  ;  Various  Kinds 
stated ;  Wills,  Codicils,  etc. —  All  codicils  ought  to  be  pre- 
sented for  probate,  together  with  the  original  will ;  and  this 
even  though  a  particular  codicil  contains  no  disposition  of 
property,  but  simply  revokes  all  former  wills. ^  Indeed,  every 
testamentary  paper  should  be  presented  at  whatever  time 
discovered,  whether  before  or  after  a  regular  probate,  and 
whether  it  merely  confirms  the  will  already  proved,  or,  on  the 

the  old  English  practice  was  to  require  which    the    executor   seeks    to    recover 

the  registrar  of  probate  to  attend  the  against  them  unless   they  were   parties 

temporal  court  whenever  in  a  suit  involv-  litigant    in    the    probate    proceedings, 

ing  title  to  land  proof  of  a   devise  was  And    when    the   validity  of   a    will    is 

needful  under  a  mixed  will  already  ad-  brought    in   question  incidentally   on  a 

mitted  to  probate.     Chancery  regularly  question  of  title  to  property,  it  is  open 

enforced  such  production  from  the  regis-  for  investigation  in  any  court  in  which 

try,  though    Lord  Eldon  expressed  his  the  title  may  be  litigated.     Fuentes  v. 

surprise  that  such  a  jurisdiction  should  Gaines,  I  Woods,  112.     In  Tennessee  a 

have    been    exercised.      I    Wms.    Exrs.  will    not    sufficiently    attested    to    pass 

390,  391 ;   I  Atk.  628;  6  Ves.  134,  802;  realty  may  be  established  as  to  person- 

7  Ves.  292.  alty.     Davis  v.  Davis,  6  Lea,  543.     See 

^  Shumway  z/.  Holbrook,  I  Pick.  114;  Ilegarty's    Appeal,    75    Penn.    St.    503. 

I    Wms.   Exrs.    293,    note    by  Perkins;  And    in    the    codes    of    some    southern 

Mass.  Pub.   Stats,  c.   127,  §   7;    Wilkin-  States,  fewer  witnesses  are  required  to 

son   V.   Leland,  2    Pet.  655 ;  Bailey  v.  a   will   of  personal    than    one   of  real 

Bailey,    8   Ohio,    245 ;     Schoul.    Wills,  property ;    a  will  in  the  testator's  own 

§§  252-254.  handwriting     being     likewise     favored 

^  Local  peculiarities  do  not  affect  the  specially  as  to  attestation.     Wms.  Exrs. 

general  rule  in  this  country.     Under  the  67,    note    by    Perkins;     Schoul.    Wills, 

law  of   Louisiana  it   appears  that   the  Part  III. 

probate    of    a    will    is    not    conclusive         3  Brenchley  v.   Still,   2    Robert.  162; 

against  parties  in  possession  of  property  Laughton  v.  Atkins,  i  Pick.  535. 

75 


8  (Si  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

Other  hand,  wholly  or  partially  revokes  it.i  A  paper,  it  i.« 
said,  which  disposes  of  no  property,  has,  generally  speaking, 
no  testamentary  character  so  as  to  enable  probate  thereof  to 
be  o-ranted.^  Yet  a  will  might  have  been  executed  for  the 
express  purpose  of  designating  executors,  and  on  that  account 
alone  deserves  admittance  to  probate.^  Of  two  or  more  con- 
flicting testaments  it  may  be  needful  to  determine  which  one 
remains  in  force  by  way  of  later  revocation,  or  whether  differ- 
ent papers  deserve  probate  as  together  containing  the  last 
will  of  the  deceased.*  And  a  will  may  be  properly  admitted 
to  probate  even  though  it  takes  effect  in  certain  provisions 
only,  and  is  void  as  to  others.^ 

A  will  which  is  made  in  execution  of  a  power  requires  to 
be  propounded  for  probate  like  any  other  will,^  subject  to 
what  we  have  said  concerning  wills  which  relate  to  real  estate 
only.'^  But  a  paper  executed  as  a  last  will,  which  does  no 
more  than  to  name  a  guardian  for  one's  children,  or  appoints 
to  a  situation  after  one's  death,^  and  neither  disposes  of  prop- 
erty nor  designates  an  executor,  is  not  entitled  to  probate. 

§  6 1 .  Testamentary  Papers  requiring  a  Probate  ;  Secret  Wills  ; 
Extraneous  Documents  referred  to.  —  Sealed  packets,  directed 
by  a  testator  to  be  delivered  by  the  executor  to  persons  un- 
opened, cannot,  consistently  with  a  rightful  settlement  of  the 
estate  upon  a  representative's   official  responsibility,   be  so 

1  Weddall  v.  Nixon,  17  Beav.  160.  140;  Hughes  v.  Turner,  4  Hagg.  30; 
As  to  the  proper  steps  to  be  taken  for  Tattnall  v.  Hankey,  2  Moore,  P.  C.  342. 
establishing  a  will  later  in  date  found  "  4  Hagg.  64;  stipra,  §  59;  Schoul. 
after   the  decree   of  probate,  see    Har-  Wills,  §  299. 

rison  v.  Every,  34  L.  T.  238.  ^  Morton,  Goods  of,  3  Sw.  &  Tr.  422. 

2  Van  Straubenzee  v.  Monck,  3  Sw.  But  i/w.  whether  this  holds  true  in  States 
&  Tr.  6.  where    the    probate  court   has   original 

*  See  Barden,  Goods  of,  L.  R.  I  P.  jurisdiction  in  the  appointment  of  guar- 
&  D.  325;  1  Wms.  Exrs.  227,  389;  dians  as  well  as  executors.  Schoul. 
Lancaster,  Goods  of,  I   Sw.  &  Tr.  464;      Wills,  §  294;  2  Sw.  &  Tr.  479. 

Miller  V.  Miller,  32  La.  Ann.  437.  A  testator  who  changes  his  will  from 

*  See  Hughes  v.  Turner,  4  Hagg.  30;  time  to  time  during  his  life,  would  do 
Morgan,  Goods  of,  L.  R.  I  P.  &  D.  323.  well  to  guard  against  multiplying  docu- 

*  George  v.  George,  47  N.  H.  27;  ments  for  presentation  to  probate.  It 
Bent's  Appeal,  35  Conn.  523;  38  Conn,  is  generally  a  good  rule  to  make  a  new 
26.  instrument,  complete  in  its  provisions, 

^  Goldsworthy    v.  Crossley,  4   Hare,     and  destroy  all  previous  ones. 

76 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  62 

delivered  ;  but  the  packets  may  be  opened  in  court  and  the 
directions  receive  probate  or  not,  according  to  the  circum- 
stances ;  the  usual  reservation  as  to  a  sufficiency  of  assets 
applying,  of  course,  if  the  contents  are  to  go  as  legacies.^ 
The  civil  law  appears  to  have  provided  a  special  form  of  pro- 
bate for  closed  testaments ;  but  with  us  no  testamentary  dis- 
position can  be  valid  and  at  the  same  time  secret  in  the  sense 
of  evading  successfully  the  scrutiny  of  a  probate  court  or  a 
public  registration  after  the  testator's  death,  for  the  con- 
venience of  all  parties  interested.^ 

But  extraneous  documents  may  be  referred  to  in  a  will  by 
way  of  regulating  details  in  the  manner  of  disposition  ;  over 
which  documents  the  testator  and  his  representatives  and  the 
court  of  probate  can  gain  no  control.  Thus,  sole  probate  may 
be  made  of  a  will  which  directs  a  settlement  of  the  estate 
after  the  manner  of  some  will  probated  in  a  different  juris- 
diction, or  according  to  the  trusts  in  a  certain  deed  which 
those  entitled  to  possession  refuse  to  give  up  or  have  copied.^ 

§  62.  Instruments  -which  do  not  purport  to  be  Testamentary. 
—  Equity  will  uphold  a  paper  sometimes  as  a  declaration  of 
trust  by  one  deceased,  though  the  same  be  not  entitled  to 
proof  as  a  will.*  The  memorandum  of  an  intended  will  not 
duly  executed  has  also  been  admitted  in  the  English  probate 
out  of  respect  to  the  testator's  manifest  intention.^  But  a 
wiser  policy  should  check  any  such  inclination  in  the  courts  ; 
for  under  our  modern  jurisprudence  the  evil  is  far  less  of  dis- 

^  Pelham   v,   Newton,    2  Cas.    temp,  codicils    for   disposing   of  property   in 

Lee,  46.  America.     See  Schoul.  Wills,  §  281. 

2  See  Swinb.  pt.  16,  §  14,  pi.  i;  *  Smith  v.  Attersoll,  i  Russ.  266; 
Godolph.  pt.  I,  c.  20,  §  4.  Inchiquin  v.  French,  i  Cox,  i. 

3  Sibthorp,  Goods  of,  L.  R.  i  P.  &  ^  Torre  v.  Castle,  I  Curt.  303;  s.  c. 
D.  106.  Where  another  such  will  or  on  appeal,  2  Moore,  P.  C.  133.  But, 
document  is  referred  to,  it  is  fair,  wher-  as  Williams  has  observed,  such  a  paper 
ever  practicable,  to  have  an  authenti-  was  not  regarded  as  an  actual  testamen- 
cated  copy  thereof  filed  in  the  registry,  tary  disposition,  but  as  fixed  and  iinal 
without  incorporating  it  in  the  probate,  instructions  which  sudden  death  alone 
Astor,  Goods  of,  L.  R.  i  P.  &  D.  150.  prevented  the  writer  from  executing  in 
Here  there  were  found  an  English  will  due  form,  i  Wms.  Exrs.  109,  no;  Bar- 
and  codicils,  designed  for  English  prop-  wick  v.  MuUings,  2  Hagg.  225;  Hat- 
erty,  and  an  American  will  with   nine  tatt  z/.  Hattalt,  4  Hagg.  211. 

11 


§  63  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

tributing  an  estate  among  kindred  as  intestate  than  in  cur- 
tailing their  equal  rights  under  any  disiDosition  which  falls 
short  of  the  testamentary  attributes.  It  is  held  that,  in  va- 
rious instances,  if  a  testator  refers  in  his  duly  executed  and 
attested  will  to  another  paper  which  has  already  been  written 
out,  clearly  and  distinctly  identifying  and  describing  it,  so 
that  it  may  safely  be  incorporated  in  so  solemn  a  disposition, 
that  jxiper  should  be  probated  as  part  of  the  will  itself.  But 
a  later  or  even  a  contemporaneous  writing,  having  the  char- 
acter of  a  mere  letter  of  instructions  to  one's  executors,  and 
not  being  executed  and  attested  as  the  law  requires,  can  have 
no  testamentary  obligation,  and  should  not  be  admitted  to 
probate  ;  and,  in  general,  an  extraneous  unattested  writing, 
to  be  incorporated  with  the  will  itself,  should  be  reasonably 
identified  by  reference  as  part  of  it  and  as  existing  when  the 
will  was  executed.^ 

§  63.  Modern  Laxity  as  to  Papers  of  a  Testamentary  Character 
corrected  by  Statutes  requiring  Attestation,  etc.  —  All  papers, 
however,  which  one  may  have  executed  with  the  formalities 
requisite  by  the  law  of  his  last  domicile,  and  which  purport, 
moreover,  to  dispose  of  any  or  all  of  his  estate  upon  his  de- 
cease, ought  to  be  presented  to  the  probate  court  for  such 
decision  as  may  be  proper  concerning  their  testamentary 
character.  And  the  modern  English  decisions,  prior  to  stat- 
utes of  Victoria's  reign,  show  a  very  liberal,  not  to  say  lax, 
course  of  dealing  with  wills  of  personal  property  in  this  re- 
spect,^  the  ancient  rule  having  been  comparatively  stringent. 
Thus  the  intended  exercise  of  a  power  might  legally  operate 
as  a  will.^    A  memorandum  of  present  trust  for  the  use  of  A. 

^  Lucas   V.   Brooks,    18    Wall.    436;  little  solemnity  as  the  making  of  a  will 

Zimmerman    v.   Zimmerman,  23   Penn.  of  personal  estate,  according  to  the  ec- 

St.  275;   Ludlum   V.  Otis,  15  Hun  (N.  clesiastical  laws  of  this  realm;   for  there 

Y.)  410;  Sibthorp,  Goods   of,  L.  R.  i  is  scarcely  any  paper  writing  which  they 

P.  &  D.  106;   Bizzey  v.  Flight,  3  Ch.  D.  will    not    admit   as   such."      Per   Lord 

269.     Schoul.  Wills,  §  281,  cases  cited.  Hardwicke  in  Ross  v.  Ewer,  3  Atk.  163. 

In  Newton  v.  Seaman's  Friend  Society,  Before  the  operation  of  stat.  1  Vict.  c. 

130  Mass.  91,  the  English  and  American  26,  no  solemnities  were    needful  for  a 

rule  with  its  qualifications  is  succinctly  will  of  personal  property,     i  Wms.  Exrs. 

stated  by  Gray,  C.  J.  7th  ed.  66. 

2  "  There  is  nothing  that  requires  so         ^  Southall  z:  Jones,  I   Sw.  &  Tr.  298. 

78 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  63 

after  one's  decease,  accompanied  by  delivery  of  the  property, 
might  be  regarded  as  testamentary.^  Deeds,  bonds,  letters, 
marriage  settlements,  bills  of  exchange,  promissory  notes, 
and  even  the  endorsement  upon  a  negotiable  instrument, 
might  operate  to  confer  a  legacy,  and  so  far  as  its  tenor  justi- 
fied, to  establish  a  last  testament. ^  And  in  both  England 
and  the  United  States,  it  must  be  considered  the  rule  of  the 
present  day,  by  a  great  preponderance  of  authorities,  that  the 
form  of  a  will  is  by  no  means  essential  to  its  testamentary 
character ;  for  if  the  writing  or  writings  duly  witnessed,  es- 
tablish an  intent  to  operate  a  disposal,  in  whole  or  in  part,  of 
one's  estate  upon  the  event  of  his  decease,  a  probate  is 
proper.^  Hence  the  inference,  likewise  supported  by  abun- 
dant citations,  that  even  though  one  may  have  intended  to 
dispose  by  some  instrument  of  a  different  sort,  and  not  by  a 
will,  yet  his  disposition  being  incapable  of  taking  effect  in 
the  one  shape,  it  might  take  effect  in  the  other ;  for,  as  the 
person  had,  if  not  the  mind  to  make  a  will,  the  mind,  neverthe- 
less, to  dispose  in  such  a  manner  as  wills  operate,  his  intention 
may  well  be  executed.*     A  will  to  be  valid  requires  the  genu- 

And  so  as  to  a  power  of  attorney.   Rose  can  take  effect  as  a  will,  the    English 

V.  Quick,  30  Penn.  St.  225.  rule  is  very  subtle,  as  our  text  indicates. 

1  Tapley  z^.  Kent,  i  Robert.  400.  Edwards    v.    Smith,  35     Miss.   197;    2 

2  See  I  Wms.  Exrs.  104,  105,  and  Strobh.  Eq.  34;  Schoul.  Wills,  §  270. 
numerous  cases  cited;  i  Redf.  Wills,  Papers  which  are  not  on  their  face 
2d  ed.  167;  Passmore  v.  Passmore,  i  of  a  testamentary  character  require  to 
Phillim.  218.  That  the  modern  rule  is  have  the a«/wM5 /«/««(/»  proved;  while 
even  more  dangerously  lax  with  respect  a  regular  paper  speaks  for  itself  on  that 
to  establishing  gifts  causa  mortis  of  in-  point.  Thorncroft  v.  Lashmar,  2  Sw. 
corporeal  personalty,  see  2  Schoul.  &  Tr.  794.  An  instrument  manifestly 
Pers.  Prop.  182.  executed  as  a  will  is  to  be  admitted  to 

8  I  Wms.  Exrs.  7th  ed.  104-107,  and  probate  without  considering  its  effect, 
numerous  cases  cited;  also  Perkins's  «.  Taylor  v.  D'Egville,  3  Magg.  206.  Un- 
to ib.;  Schoul.  Wills(i887), Part  III.  c.  i.  der  various  statutes  a  paper  having  all 

*  I  Wms.  Exrs.  104-107;    Masterman  the  formalities  of  a  deed,  but  concluding 

V.    Maberly,    2    Hagg.    247;   Morgan,  that  the  deed  shall  not  go    into  effect 

Goods  of,  L.  R.  I  P.  &  D.  214;    i  Redf.  "  until  after  the  death  of  said  B."  (the 

Wills,  167.     Where  one  makes  a  deed  to  grantor)  or  otherwise  having  reference 

take   effect  only  on  his  death,  this  has  to  the  contingency  of  death  to  make  it 

been    sustained    sometimes   as   a   deed  operative,  is  held  testamentary.     Bright 

where  insufficiently  executed  to  serve  as  v.  Adams,  51  Ga.  239;    Frew  v.  Clarke, 

a  will.     Moye  v.  Kittrell,  29  Geo.  677.  80  Penn.  St.  171 ;   Daniel  v.  Hill,  52  .\la. 

As  to  whether  an  instrument,  invalid  as  430.     Orders   upon    savings-banks    are 

a  deed,  but  intended  to  operate  as  such,  held  testamentary.     Marsden,  Re,  \  Sw. 

79 


§63 


EXECUTORS    AND    ADMINISTRATORS.  [PART    II, 


ine  animus  testandi ;  the  mind  should  act  freely  and  under- 
standingly  to  this  intent.^ 

Under  the  statutes,  however,  which  insist  explicitly  upon 
a  formal  method  of  execution,  —  as  by  acknowledging  in  the 
presence  of  three  or  more  witnesses,  such  as  are  rarely  found 
attesting  instruments  of  other  kinds,^  — much  of  this  refine- 


&  Tr.  552.  An  instrument  in  the  form 
of  a  letter  may  be  a  valid  will.  Cowley 
V.  Knapp,  42  N.  J.  L.  297.  And  see  as 
to  various  brief  and  informal  instru- 
ments manifesting  the  testamentary  in- 
tent, I  Redf.  Wills,  4th  ed.  1 65-1 81, 
and  cases  cited;  Schoul.  Wills,  §§ 
265-274,  where  this  subject  is  treated 
at  length;  Clarke  v.  Ransom,  50  Cal. 
595.  In  short,  the  form  of  a  will  is  un- 
important; but  any  paper  of  a  testamen- 
tary character,  which  is  executed  after 
the  statute  formalities,  is  entitled  to  pro- 
bate. McBride  v.  McBride,  26  Gratt.  476. 

As  to  a  will  executed  in  contempla- 
tion of  a  particular  casualty  which  did  not 
happen,  and  conditional  wills  generally, 
see  I  Redf  Wills,  176,  177,  and  cases 
cited;  French  v.  French,  14  W.  Va. 
458;  Schoul.  Wills,  §  285  et  seq.  and 
cases  cited.  The  point  of  inquiry  is 
whether  the  contingency  was  the  occa- 
sion of  execution  simply,  or  the  condi- 
tion on  which  the  will  was  to  become 
operative. 

Notwithstanding  the  English  cases 
decided  before  the  statute  of  i  Vict.  c. 
26,  which  paid  so  much  regard  to  inten- 
tional dispositions  of  personalty  infor- 
mally executed,  we  may  regard  it  as  the 
settled  doctrine  of  American  States  that 
a  will  must  be  perfect  in  the  testamen- 
tary sense  at  the  decease  of  the  testator, 
or  it  cannot  take  effect  as  a  will ;  and 
this  because  American  statutes  have 
long  prescribed  certain  formalities  of 
execution  as  indispensable,  including  a 
due  attestation  by  witnesses.  Mere 
drafts  or  minutes  of  a  will  are  therefore 
inadmissible  to  probate.  See  i  Redf. 
Wills,  225;  Schoul.  Wills,  §§  252,  253; 
Vernam  v.  Spencer,  3  Lradf.  Sur.  16; 
RuofTs    Appeal,    26    Penn.    St.    219; 


Aurand  v.  Wilt,  9  Penn.  St.  54;  Lun- 
gren  v.  Swartzwelder,  44  Md.  482;  Hart 
V.  Rust,  46  Tex.  556.  But  some  of  our 
earlier  decisions,  made  under  statutes 
less  explicit,  appear  to  conform  to  the 
contemporaneous  English  rule.  See 
Boofter  v.  Rogers,  9  Gill,  44. 

1  Schoul.  Wills,  §§  278,  279. 

2  There  are  great  variations  (as  one 
may  gather  from  general  works  on  Wills) 
concerning  the  number  of  witnesses  re- 
quired for  the  due  attestation  of  a  will. 
In  England,  prior  to  1838,  a  devise  of 
real  estate  had  to  conform  to  the  stat- 
ute of  frauds  in  certain  respects  which 
did  not  apply  to  wills  of  personal  prop- 
erty; the  latter  being,  of  necessity,  re- 
duced to  writing,  generally  speaking, 
but  under  the  statute  requiring  no  fur- 
ther formality;  so  that  the  same  will,  if 
professing  to  dispose  of  both  real  and 
personal  estate,  might  operate  in  the 
latter  respect,  but  not  in  the  former. 
But  the  new  statute,  i  Vict.  c.  26,  which 
took  effect  in  1838  (permitting  wills  pre- 
viously executed  to  remain  valid),  abol- 
ished this  mischievous  distinction  for 
the  future,  and  superseded  the  old  pro- 
visions of  law  by  new  ones  which  ex- 
acted the  same  formalities  of  execution, 
whatever  the  description  of  property; 
declaring  that  no  will,  except  those  of 
soldiers  and  mariners,  should  be  valid 
unless  in  writing,  executed  at  the  foot 
by  the  testator,  and  acknowledged  in  the 
presence  of  two  or  more  witnesses.  I 
Wms.  Exrs.  66,  67.  Hence  English 
citations  should  be  distinguished  under 
these  two  systems  by  the  American  prac- 
titioner of  this  day  who  has  been  accus- 
tomed to  solemn  forms  of  execution 
under  his  local  law.  Our  American 
statutes  which  are  of  local  origin   pre- 


80 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  64 

ment  upon  the  animus  tcstandi  is  dispensed  with,  and  the 
law  of  wills  becomes  restored  to  its  legitimate  footing. 
Orders,  bills  of  exchange,  and  papers  hastily  drawn  up  may 
even  thus  demand  judicial  recognition  as  wills  ;  ^  but  the 
solemnity  of  an  execution  with  attestation  affords  a  reason- 
able assurance  that  the  deceased  intended  thereby  a  testa- 
mentary act  with  its  attendant  consequences  to  his  estate 
after  death.  The  witnesses  become  sponsors  to  the  probate 
court  when  the  maker's  own  lips  are  silent.^ 

There  is  all  the  more  reason  for  hedging  testaments  about 
with  peculiar  formalities,  inasmuch  as  our  courts  permit  a 
testamentary  disposition  of  one's  estate  to  be  partial  as  well 
as  total,  and  in  some  instances  appear  even  to  have  consid- 
ered that  the  same  instrument  might  operate  partly  in  prae- 
senti  and  partly  after  death  ;  ^  so  that,  except  for  the  safe- 
guards of  statute  execution,  probate  would  little  aid  the 
sound  public  policy  of  a  general  and  equal  distribution. 
Nothing  causes  such  private  heartburnings  or  so  wrecks  the 
peace  of  families  as  the  ill-considered  will  of  an  ancestor,  and 
a  bestowal  of  preferences  out  of  his  estate  to  particular  kins- 
men or  strangers,  which  they  may  be  suspected  of  having 
procured  unfairly. 

§  64.    By  ■whom  the  Will  should  be  propounded  for  Probate. 

—  The  duty  of  propounding  the  will  for  probate  devolves  nat- 

sent   great   variety,  but    on    the   whole  shown  to  be  done  in  jest,  have  no  legal 

treat    real    and    personal  estate    alike,  operation.     Nicholls  v.  Nicholls,  2  Phil- 

Schoul.  Wills,  Part  III.,  cs.  2,  3.  lim.    180;    Schoul.    Wills,  §   278.     But 

But   no    particular    form    of   attesta-  such  jests  are  too  rarely  perpetrated  to 

tion  by  the  witnesses  is  in  general  re-  occasion  perplexity.     Palpable  error  in 

quired  by  English  or  American  statutes,  executing    may    vitiate;   as    where    two 

Schoul.  Wills,  c.  3,  passim.  wills  were  prepared  for  execution  each 

1  A    paper     executed,    with     all    due  by  A.  and   B.,  and  through   mistake  A. 

formalities,  such  as  a  bill  of  exchange,  executed  the  will  prepared  for  B.    Hunt, 

is  entitled  to  probate.     Jones  z^.  Nicholay,  Goods  of,   L.  R.   3  P.  &  M.  250.     See 

2  Rob.  288.     So  may  a  deed  addressed  Schoul.  Wills,  §§  214-218. 
to  one's  administrators  and    executors.         -  Schoul.  Wills,  §  279. 
Frew  V.  Clarke,  80  Penn.  St.  171.    And        ^  See  Doe  v.  Cross,  8  Q.  B.  714.    But 

see,  as  to  a  simple  order  contained  in  a  cf.  as  to  whether  the  same  instrument 

single  sentence,  Cock  v.  Cooke,  L.  R.  I  can  operate  both  as  a  deed  and  a  will. 

P.  &  D.   241;   Coles,  Goods  of,  L.  R.  2  Thompson  v.  Johnson,  19  Ala.  59.     See 

P.  &  D.  362.     Doubtless  an  instrument  Devecmon  v.  Devecmon,  43   Md.  335; 

formally    executed    as   a   will,  would,  if  Schoul.  Wills,  §  270. 

81 


§  65  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

urally  upon  the  person  or  persons  designated  to  execute  its 
provisions.  Nor  ordinarily  can  the  designated  executor  re- 
lieve himself  of  this  duty  except  by  filing  his  renunciation  in 
due  form  as  of  probate  record,  and  discharging  himself  of 
custody  in  a  prudent  manner.  ISut  the  executor  might  be 
absent  or  incapacitated  from  service,  when  the  emergency,  so 
often  unforeseen,  of  the  testator's  death  arose,  or  else  in  cul- 
pable default.  Probate,  and  more  especially  the  production 
of  the  document  for  probate  custody,  is  transcendent,  how- 
ever, to  all  such  mischances,  and  the  public  necessity  of 
clearing  titles  and  placing  the  dead  person's  estate  in  due 
course  of  settlement  for  the  benefit  of  creditors  and  all  others 
interested,  paramount  to  the  right  of  any  particular  person 
to  execute  the  trust.  When  the  person  entitled  renounces  or 
fails  to  qualify,  the  court  has  recourse  to  the  appointment  of 
an  administrator  with  the  will  annexed  ;  and  in  case  of  pro- 
tracted contest  or  inevitable  delay  from  one  cause  or  another, 
may  commit  the  estate  to  a  temporary  or  special  administra- 
tor for  collection  and  preservation  of  the  property  ;  all  of 
which  will  appear  more  fully  hereafter.^  But  the  will  itself 
must  be  produced  before  the  court  or  register,  whoever  may 
be  its  custodian  ;  and  the  death  having  conferred  a  probate 
jurisdiction,  any  person  interested,  or  who  believes  himself 
interested  in  the  estate  of  the  deceased,  may  petition  for  cita- 
tion to  have  the  will  brought  into  the  court.  Of  a  custodian's 
excuses  for  delay  or  non-production  under  such  circum;  tances 
the  court  shall  judge.^ 

§  65.  Petition  and  Proceedings  for  Probate,  etc.  ;  Probate  in 
Common  Form  and  Probate  in  Solemn  Form.  —  Any  one,  there- 
fore, who  claims  an  interest  under  what  purports  to  be  the 

*  See  c.  4,  post,  as  to  administration.  ib.    The  jurisdiction  of  the  local  probate 

-  Godolph.  pt.  I,  c.  20,  §   2;    3  Redf.  court   for  thus  subserving  pul)lic  policy 

Wills,  2d  ed.  45;    i    Wnis.  Exrs.    318-  is  usually  detailed  by  the  local  statute. 

320;   Foster  v.  Foster,  7  Paige,  48.     It  A  probate  judge  should  entertain  a  peti- 

is  matter  of  public  interest  that  the  will  tion  fo;-  the  allowance  of  a  will  wher- 

should  be  produced.     Any  one  expect-  ever  the  law  authorizes  him  to  do  so;  and 

ing  a  legacy  may  thus  petition,  as  the  it  is  unimportant  that  the  petitioner  ap- 

old  books  say,  "  to  the  intent  that  they  plies  under  the  wrong  statute.    Schober 

may   thereby  be   certified  whether  the  v.  Probate  Judge,  49  Mich.  323. 
testator  left  them  a  legacy."      Godolph. 

82 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  66 

will  of  the  deceased,  or  who  wishes  to  discharge  himself  of 
its  custody,  may  have  the  instrument  seasonably  surrendered 
into  the  probate  custody.  And  it  is  held  that,  whenever  the 
executors  decline  to  offer  an  instrument  for  probate,  any  one 
claiming  an  interest  under  it,  and  not  a  mere  intruder,  may 
present  it  in  his  stead. ^  Usually,  however,  the  petition  for 
probate  embraces  that  for  the  appointment  of  executor  or 
administrator  with  the  will  annexed,  and  is  presented  by  the 
party  claiming  the  office  ;  and  under  the  simple  probate  prac- 
tice of  our  American  county  courts,  the  petitioner  sets  forth, 
in  a  printed  blank,  the  facts  of  death  and  last  domicile  of  the 
deceased,  the  names  and  places  of  residence  of  the  surviving 
widow  or  husband  and  next  of  kin,  and,  alleging  that  the 
paper  or  papers  presented  constitute  the  last  will  and  testa- 
ment of  the  deceased,  prays  his  appointment,  making  due 
reference  to  the  foundation  of  his  claim  for  the  office,  and  his 
willingness  to  qualify  according  to  law.^ 

Probate  law  recognizes  two  modes  of  proving  a  will  :  (i)  in 
common  form  ;  {2)  in  solemn  form,  or,  as  it  is  said,  per  testes, 
or  by  form  of  law.  The  essential  distinction  consists  in  a 
careful  establishment  of  the  validity  of  the  will  by  proof 
under  the  latter  method,  but  not  under  the  former ;  though 
the  line  is  not  drawn  with  uniform  exactness  as  respects 
English  and  American  practice  on  this  point. 

§  66.  Probate  of  "WUl  in  Common  Form.  —  (l)  As  t^O  the  first 
method,  probate  in  common  form  applies  only  for  conven- 
ience, expedition,  and  the  saving  of  expense  where  there  is 
apparently  no  question  among  the  parties  interested  in  the 
estate  that  the  paper  propounded  is  the  genuine  last  will,  and 
as  such  entitled  to  probate.  For  contentious  business  before 
the  court,  probate  in  common  form  would  be  quite  unsuitable. 

According  to  the  English  ecclesiastical  practice,  in  which 
such  probate  originated,  a  will  is  proved  in  common  form,  as 
the  books  state,  when  the  executor  presents    it    before    the 

'  Ford  V.  Ford,  7  Humph.  92;    Enloe  testamentary    capacity   of   the    testator 

V.  Sherrill,  6  Ired.  212;    Stone  v.   Hux-  need  not  be  alleged  in  the  petition   for 

ford,  8  Blackf.  452.  probate.     Hathaway's  Appeal,  46  Mich. 

2  Smith  Prob.  Pract.  (Mass.)  45.    The  326. 

83 


I  66  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

judge,  and  in  the  absence  of,  and  without  citing,  the  parties 
interested,  produces  more  or  less  proof  that  the  testament 
exhibited  is  the  true,  whole,  and  last  testament  of  the  de- 
ceased ;  whereupon  the  judge  passes  the  instrument  to  pro- 
bate and  issues  letters  testamentary  under  the  official  seal.' 
An  important  feature  of  this  practice,  from  the  earliest  times, 
has  been  the  oath  of  the  executor  who  propounds  the  will  for 
probate  as  to  all  the  essential  facts  ;  and  upon  this  oath  so 
great  reliance  has  always  been  laid  in  England,  that  by  means 
of  it  a  will  purporting  to  be  duly  attested  by  witnesses,  undis- 
puted and  apparently  regular  upon  its  face,  is  readily  pro- 
bated. And  the  court  of  probate  act  of  1857  (20  &  21  Vict. 
c.  TJ),  treats  the  disposition  of  all  such  non-contentious  busi- 
ness as  so  purely  formal  that  probate  or  letters  of  administra- 
tion may  in  common  form  be  procured  from  the  registrar  ; 
direct  application  to  the  court  being  nevertheless  permitted, 
as  parties  may  prefer.^ 

Where  there  is  no  contention,  nor  reason  for  contention, 
English  practice  leaves  the  executor  to  his  own  choice  as 
between  taking  probate  of  the  will  in  common  or  in  solemn 
form.  And  it  is  observable  of  English  probate  in  common 
form,  not  only  that  the  mode  of  proof  is  thus  made  to  sub- 
serve the  executor's  convenience  as  far  as  possible,  but  that 
no  notice  need  be  given  to  persons  interested  in  the  will,  nor 
opportunity  afforded  them  to  object  to  the  proof.     The  regis- 

1  Swinb.  pt.  16,  §  14,  pi.  I;  Wms.  not  attested  at  all,  by  an  affidavit  of  two 
Exrs.  325.  persons  (or  in  an  extreme  case,  of  one 

2  Wms.  Exrs.  7th  ed.  320-332,  citing  person  only)  to  the  testator's  signature, 
sections  of  the  above  statute,  together  i  Wms.  Exrs.  327-330,  and  cases  cited; 
with  rules  and  orders  of  court.  To  un-  Brett  v.  Brett,  3  Add.  224.  In  the  latter 
derstand  the  English  precedents  relating  instance,  the  rule  is,  to  admit  to  probate 
to  proliate  in  common  form,  one  must  in  common  form  any  will  which  has  a 
distinguish  between  wills  made  prior  to  clear  attestation  clause  upon  the  execu- 
1838,  when  wills  of  personal  property  tor's  oath  alone;  but  if  the  attestation 
required  no  formal  attestation  by  wit-  clause  does  not  speak  clearly  and  there 
nesses,  and  wills  made  since,  upon  remains  doubt,  to  require  one  of  the 
which  statute  I  Vict.  c.  26  {supra,  §  63)  subscribing  witnesses  to  testify  as  to 
operates,  requiring  two  witnesses.  In  regularity;  this  requirement  being,  how- 
the  former  instance  the  will,  if  attested  ever,  dispensed  with  at  discretion,  i 
by  two  subscribing  witnesses,  might  be  Wms.  Exrs.  330-332,  and  cases  cited; 
admitted  to  probate  upon  the  executor's  Hare,  Goods  of,  3  Curt.  54. 

oath,  if  all  appeared  regular;   or,  when 

84 


CHAP.    II.]  PROBATE    OF    THE    WII.L.  §  6/ 

trar  or  court,  however,  is  expected  to  hold  the  scales  impar- 
tially, to  require  sufficient  testimony  for  establishing  the 
paper  as  priuid  facie  a  testamentary  one,  duly  executed,  and 
to  admit  nothing  to  probate  but  what  appears  entitled  thereto. 
Where  probate  in  common  form  is  sought  of  an  instrument 
which  on  the  face  of  it  is  imperfect,  probate  will  not  be 
granted  except  upon  affidavits  stating  a  case  sufficient  to 
establish  the  will  upon  solemn  proof,  and  upon  the  express 
or  implied  consent,  moreover,  of  all  the  parties  interested. 
Neither  can  the  consent  of  all  interested  parties  procure  the 
grant  in  common  form  of  an  apparently  invalid  will  ;  nor  can 
affidavits  establish  a  doubtful  instrument  aside  from  citing  in 
the  parties  interested  or  procuring  their  formal  waiver  of  the 
doubt.^  In  wills  of  modern  date,  requiring  attestation  by  two 
witnesses  under  the  statute  i  Vict.  c.  26,  affidavits  are  called 
for  where  there  is  no  regular  clause  of  attestation  ;  and  if  it 
thus  appears  that  the  will  was  executed  in  due  compliance 
with  the  statute,  the  informality  becomes  of  no  legal  conse- 
quence ;  but,  if  otherwise,  the  court  rejects  the  prayer  for 
probate  in  common  form,  leaving  all  interested  parties  to  their 
own  course,  whether  to  propound  the  will  afterwards  in 
solemn  form  or  to  proceed  as  in  case  of  intestacy.^  Where 
executors  propound  a  certain  instrument,  claiming  that  another 
paper,  which  the  testator  executed  afterwards,  is  invalid  as  a 
will,  and  such  claim  appears  correct,  besides  which  the  per- 
sons interested  in  the  late  paper,  after  citation  to  propound  it 
for  probate,  decline  to  do  so,  but  assent  to  the  earlier  one, 
probate  in  common  form  of  the  earlier  paper  would  be  proper.* 

§  ^y.  Probate  of  "Will  in  Common  Form ;  the  Subject  con- 
tinued. —  The  probate  of  wills  in  common  form  is  permitted 
by  the  local  laws  of  several  American  States,  and,  as  in  Eng- 


1  I  Wms.  Exrs.  329,  and  cases  cited;  Gibbs,  Goods  of,  I  Hagg.  376.     And  as 

Edmonds,    Goods    of,    i     Hagg.    698;  to  issue  born  after  probate,  see  Taylor, 

Tolcher,  Goods  of,  2  Add.  16.     Where  Goods  of,  i  Hagg.  642. 
minors  are  parties  interested,  probate  in         '^  Ayling,  Goods  of,  i  Curt.  913. 
common  form  cannot  usually  be  obtained         ^Palmer  v.  Dent,  2  Robert.   284;    I 

of    a   will   which    is  apparently   imptr-  Wms.  Exrs.  332. 
feci,  since  their  consent  is  unobtainable. 

85 


§  68  EXECUTORS    AND    ADMINISTRATORS.  [PART    H. 

land,  upon  a  reasonable  assumption  that  the  instrument  pre- 
sented is  valid  in  all  respects,  and  its  proof  not  contested  by 
any  of  the  parties  interested.^  Thus,  in  New  Hampshire, 
this  mode  of  probate  finds  distinct  statute  recognition  ;  not, 
however,  with  a  similar  reliance  upon  the  executor's  oath  ;  for, 
American  law  commonly  demanding  attestation  by  witnesses, 
the  judge  approves  in  common  form  upon  the  testimony  of 
one  of  the  subscribing  witnesses  alone,  without  requiring  the 
other  witnesses  to  attend  ;  though  approval  is  given  appar- 
ently upon  ex  parte  proceedings,  as  in  England,  so  as  to  dis- 
pense with  a  citation  to  persons  interested  in  the  estate.^ 

§  68.  The  Subject  continued  ;  American  Statutes  as  to  Non- 
Contentious  Business.  —  What  in  an  American  State  would  be 
called  probate  in  common  form  may  well  vary  still  farther 
from  the  English  method,  as  do  the  statutes  in  comparative 
historical  sequence,  both  as  respects  the  needful  formalities 
of  wills  and  probate  jurisdiction.  Citation,  for.  instance, 
being  simple  and  inexpensive,  or  by  a  county  newspaper  pub- 
lication rather  than  personal  summons,  and  practical  distinc- 
tions between  wills  of  real  and  of  personal  property  being 
quite  out  of  favor,  in  American  jurisprudence,  the  American 
procedure  usually  refers  probate  to  the  judge,  while  the  regis- 
ter, exercising  no  such  functions,  receives  simple  official  cus- 
tody of  the  so-called  will,  and  upon  the  petition  for  probate 
placed  upon  his  file  at  any  time,  orders  a  citation  to  be  pub- 
lished, that  all  parties  interested  may  appear  before  the  judge 
at  the  next  convenient  court  day.  An  excellent  statute  in 
Massachusetts,  to  which  we  shall  presently  allude  again,  pro- 

1  Thus  it  is  or  has  been  recognized  in  ceedings.      Tucker    v.    Whitehead,    58 

New  Hampshire,  North  Carolina,  South  Miss.  762.     Probate  in  solemn  form  is 

Carolina,    Mississippi,   etc.     Armstrong  made  after  all  persons  whose  interests 

V.  Baker,  9  Ired.  109;   Kinard  v.  Rid-  may  be  affected  have  been  duly  notified 

dlehoover,  3  Rich.  258;  Jones  v.  Mose-  and  had  an  opportunity  to   be  heard, 

ley,  40  Miss.  261 ;   Martin  v.  Perkins,  If  a  petition  is  for  probate  in  common 

56  Miss.  204.  form  and  without  notice   to    the  heirs, 

^  George   v.  George,  47  N.   H.  44;  and  if  upon  the  hearing  counsel  appear 

Noyes  v.  Barber,  4  N.  H.  406.  for  the  heirs  and  cross-examine  the  wit- 

The  probate   of  a   will   in  common  nesses  to  the  v\ill,  this  does  not  waive 

form  is  effectual  and  binding  until  at-  the  probating  in  solemn  form.     Gray  v. 

lacked  and  overturned   in   direct  pro-  Gray,  60  N.  H.  28. 

86 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  69 

vides  that,  when  it  appears  to  the  court,  by  the  written  con- 
sent of  the  heirs-at-law,  or  other  satisfactory  evidence,  that  no 
person  interested  in  the  estate  intends  to  object  to  the  pro- 
bate of  the  will,  the  court  may  grant  probate  thereof  upon 
the  testimony  of  one  only  of  the  subscribing  witnesses.^ 
Probate  under  this  statute  is  not  rendered  ex  parte,  or  with 
the  inconclusiveness  of  a  strict  probate  in  common  form,  but 
stands  to  all  intent  as  a  probate  in  solemn  form,  because  all 
the  interested  parties  must  have  been  brought  within  the 
scope  of  a  judicial  investigation,  and  their  respective  rights 
fairly  protected.  For,  as  we  must  bear  in  mind,  the  essential 
facts  which  entitle  a  paper  legally  to  probate  do  not  differ, 
whether  the  probate  is  contested  or  not  contested.  And  as 
between  the  executor  named  in  a  will  and  a  mere  subscribing 
witness,  the  testimony  of  the  latter  is  the  safer,  as  a  rule,  to 
depend  upon  in  all  cases  of  probate. 

§  69.    Probate  of  "Will  in  Solemn   Form  ;   English   Practice.  — 

(2)  As  to  the  second  method  of  proving  wills.  Probate  in 
solemn  form  is  the  only  kind  suitable  where  the  validity  of 
the  will  is  disputed  ;  and  to  accept  the  English,  though  not, 
perhaps,  the  American,  distinction,  the  only  kind  which  a 
judge  alone,  and  not  a  register,  is  empowered  to  grant,  and 
which  necessarily  brings  in  all  interested  in  the  estate  as 
parties  to  the  probate  proceedings,  so  as  to  be  bound  by  the 
final  decree. 

The  English  probate  court  has  established  rules  for  con- 
tentious business  of  this  description.  Thus,  an  executor  may 
be  compelled  to  prove  a  will  in  solemn  instead  of  common 
form  by  any  one  of  the  next  of  kin,  or  a  person  interested  in 
the  will,  such  person  having  first  filed  a  caveat  in  the  court 
which  takes  jurisdiction  of  the  estate  of  the  deceased,  to  the 
intent  that  notice  shall  be  given  him  of  any  application  for 
probate,  and  afterwards  responding  to  a  notice  sent  from  the 
registrar  accordingly.^     So,  too,  after   an  executor  has  pro- 

^  Mass.Gen.  Stats. c.  92,  §  19;  posl,^'jo.  party  answering  to  his  notice,  the  con- 

2  3  Redf.  Wills,  2d  ed.  27  «.;    Rules  tentious  business  is  held  to  commence, 

and  Orders  under  20  &  21  Vict.  c.  77,  and  the  register  enters  the  cause  upon 

and   21    (i   22  Vict.  c.  95.      Upon   the  the  docket  accordingly. 

87 


§  6g  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

pounded  and  proved  the  will  in  common  form,  he  may  be  put 
to  the  proof  over  again,  />c'r  testes,  in  solemn  form,  by  any 
person  having  an  interest,  and  this  (as  it  has  been  held)  not- 
withstanding a  long  lapse  of  time,  like  thirty  years,  and  the 
great  inconvenience  of  procuring  proper  testimony,  which  the 
executor  may  suffer  in  consequence.^  That  the  next  of  kin 
acquiesced  in  proving  the  will  in  common  form  does  not  de- 
bar him  from  insisting  afterwards  upon  the  solemn  probate  ; 
nor  docs  even  his  receipt  of  a  legacy  under  the  will,  provided 
he  brings  the  legacy  into  court  before  pursuing  his  right,  that 
its  payment  may  abide  the  result  of  the  contest. ^  The  right 
of  the  next  of  kin  as  such  to  require  proof  of  the  will  in 
solemn  form  is  absolute  ;  and  the  same  right  extends  to  any 
party  in  interest.  But  some  interest,  however  remote,  must 
be  shown  before  the  executor  can  be  put  to  so  troublesome  a 
task.  A  creditor  as  such  has  no  recognized  interest  in  the 
probate,  but  only  a  right  to  ascertain  whether  there  be  assets 
sufficient  to  meet  the  debts.^  But  as  amicus  curiae  and  with- 
out costs  any  creditor  may  contest  a  will ;  and  it  would  ap- 
pear that  whenever  the  court  or  registrar  finds  that  probate 
in  common  form  ought  not  to  be  granted,  probate  in  solemn 
form  may  be  compelled,  though  the  practice  is  to  wait  until 
some  interested  party  opposes  the  will  of  his  own  motion.* 

Finally,  in    English    practice,    the    executor   may   himself 
propound  the  will  in  solemn  form,  in  the  exercise  of  a  right- 

1  2  Wms.  Exrs.  334;   Godolph.  pt.  I,  Exrs.  336,  337.     A  legatee  who  has  re- 

G.   20,  §  4.      Swinburne,  pt.  6,  §  14,  pi.  nounced   administration    with    the   will 

4,  seems  to  limit  the  time  of  compelling  annexed  is  not  debarred  from  com])el- 

such  solemn  probate  to  ten  years'  but  ling  solemn  probate.     2  Cas.  temp.  Lee, 

Williams  considers  this  a  typographical  241. 

error.      I  Wms.  Exrs.  334,  n.    One  who         ^  i  Cas.  temp.  Lee,  544;    Menzies  v. 

lets  a  long  time  elapse  before  requiring  Pulbrook,   2  Curt.   845;    i   Wms.   Exrs. 

such  probate  can  claim  no  indulgence  338. 

of  the  court,  and  nothing  beyond  his         *  Cas.    temp.   Lee,   544;   Menzies   v. 

legal  rights.     Blake  v.  Knight,  3  Curt.  Pulbrook,  supra.     The  vexatious   con- 

553-       Where  no  statute  fixes  the  bar-  duct  of  a  party  in  interest,  who  compels 

rier,  it  is  after  all  uncertain  whether  any  probate  in  solemn  form,  after  permitting 

specific  time  can  l)e  set  for  limiting  such  probate  in  common  form,  affords  reason 

compulsion.     2  Phillim.  231,  note.  rather  for  condemning  him  in  costs  than 

'^  Benbow,  Goodsof,  2  Sw.  &Tr.  488;  for    denying    the   right   of  compulsion. 

Core  V,  Spenser,   I  Add.  374;    i  Wms.  See  Bell  v.  Armstrong,  i  Add.  375. 

88 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  ^0 

ful  discretion.^  And  manifestly,  wherever  the  executor  is  not 
of  kin  and  sole  legatee,  but  other  large  pecuniary  interests 
are  at  stake,  this  must  be  his  only  prudent  course  ;  unless  it 
is  certain  that  the  will  is  neither  objectionable  in  itself  nor 
likely  to  be  objected  to.  In  such  case,  the  executor  cites 
the  next  of  kin  and  all  others  claiming  an  interest,  to  attend 
the  proceedings  ;  and  at  the  appointed  time,  the  will  having 
been  proved  by  sufficient  testimony,  upon  a  hearing,  and  all 
direct  contest,  should  any  arise,  and  the  proceedings  in  the 
case  terminating  in  a  probate  of  the  will  in  solemn  form,  the 
judgment  stands  conclusive  like  other  final  judgments,  unless 
appealed  from.^ 

Citation  to  all  parties  in  interest  is  a  feature  incident 
to  all  contentious  proceedings  for  establishing  a  will.  And 
while  English  probate  practice  had  reference  formerly  to 
wills  of  personal  and  not  real  estate,  the  Court  of  Probate 
Act  of  1857  requires  heirs-at-law  and  devisees  to  be  cited 
whenever  the  validity  of  a  will  affecting  real  estate  is  disputed 
on  proving  it  in  solemn  form,  or  in  any  other  contentious 
cause ;  and  the  validity  of  the  will  being  once  solemnly 
adjudged,  the  decree  binds  forever  all  persons  thus  cited  or 
made  parties.^ 

§  70.  Probate  of  "Will  in  Solemn  Form ;  American  Practice.  — 
Our  American  practice  being  simple  and  inexpensive  by 
comparison,  less  occasion  is  found  than  in  England  for  dupli- 
cating probates  ;  and  in  most  States  one  probate  practically 
concludes  all  issues.  This  probate  deserves  the  style  of 
solemn  form  (though  seldom  designated  as  such),  and  bor- 
rows certain  features,  including  the  citation,  from  the  English 
spiritual  practice.  One  rule  applying  in  general,  whether  the 
will  relate  to  real  or  personal  estate,  or  to  both,*  the  citation 


1  I  Wms.  Exrs.  335;    3  Redf.  Wills,  forever  barred.     Ratcliffe  v.  Barnes,  2 

3d  ed.  27  n.  Sw.  &  Tr.  486. 

■^  lb.     Even  though  certain  next  of  kin  ^  Act  20  &  21  Vict.  c.  77,  §§  61,  63; 

were  not  regularly  cited;   yet  their  ac-  Wms.  Exrs.  341 ;   Fyson  v.  Westrope,  I 

tual  cognizance  that  probate  in  solemn  Sw.  &  Tr.  279. 

form  was  pending  through  the  citation  *  Such,  for  instance,  is  the  practice  in 

of  others  binds  them  to  oppose  or  be  Massachusetts,  which  is  similar  to  that 

89 


5   "JO  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

which  issues  from  the  register's  office,  upon  the  filing  of  the 
will  accompanied  by  one's  petition  for  letters  testamentary 
or  of  administration,  embraces  in  terms  heirs-at-law,  next  of 
kin,  and  all  other  persons  interested  in  the  estate  of  deceased. 
These  are  summoned  to  appear  in  court  at  a  day  named,  and 
show  cause,  if  any  they  have,  why  the  will  should  not  be 
allowed  and  the  petition  granted.  This  citation  requires 
usually  no  personal  service,  but  simply  publication  by  copy 
in  some  designated  newspaper  which  circulates  in  the  county 
of  the  testator's  last  domicile.  Once  a  week,  for  three  suc- 
cessive weeks,  is  the  rule  of  publication  in  many  States ; 
though  the  form  and  terms  of  notice  are  largely  in  the  dis- 
cretion of  the  judge.  Formal  notice  is  dispensed  with  when 
the  heirs-at-law,  next  of  kin,  and  all  others  interested  in  the 
estate  of  the  deceased  express  in  writing  their  waiver  of 
notice  in  favor  of  the  petition,  being  all  sui  juris ;  otherwise, 
the  petitioner,  having  served  the  citation  in  accordance  with 
the  terms  prescribed,  makes  his  return  of  the  fact  under  oath, 
on  or  before  the  day  fixed  for  the  hearing. 

The  procedure  being  thus  essentially  in  solemn  form, 
inasmuch  as  heirs,  kindred  and  all  other  parties  interested  are 
sufficiently  summoned  and  made  parties  to  the  hearing  for 
probate,  to  contest  then  and    there  the  will  propounded,  if 


of  many  other  States.  Smith  Prob.  The  next  of  kin  has  an  interest  en- 
Pract.  46;  O'Dell  v.  Rogers,  44  Wis.  titling  him  to  contest  the  probate  of  an 
136;  Parker  v.  Parker,  11  Cush.  519.  alleged  will;  so,  also,  one  who  by  the 
In  some  parts  of  the  United  States  per-  probate  would  be  deprived  of  rights  un- 
sonal  service  or  summons  is  insisted  der  a  former  will.  Merrill  v.  Rolston, 
upon,  and  newspaper  publication  alone  5  Redf.  (N.  Y.)  220.  No  appointment 
will  not  give  jurisdiction  of  the  parties  of  a  guardian  ad  litem  for  a  minor  in- 
interested  sufficient  to  conclude  them,  terested  is  necessary.  Mousseau's  Will, 
Thus  notice  must  be  mailed  to  each  heir  30  Minn.  202.  Newspaper  publication 
or  personally  served.  Bartel's  Estate,  on  personal  service  upon  all  parties 
Myrick  (Cal.)  130;  Cobb,  Estate  of,  49  interested,  is  permitted  at  discretion  by 
Cal.  600.  In  a  suit  to  contest  the  valid-  many  local  statutes  ;  but  the  former 
ity  of  a  will,  the  legatees  and  devisees  course  is  the  most  convenient.  One 
are  made  indispensable  parties  in  Ohio,  who  has  not  been  formally  made  a  party 
Reformed  Presb.  Church  v.  Nelson,  35  to  probate  proceedings  can  make  no 
Ohio  St.  638.  But  not  in  New  York,  motion  therein.  5  Redf.  (N.  Y.)  326. 
where  they  may  intervene  but  need  not  Local  statutes  should  be  consulted  on 
be  cited.  2  Demarest,  160.  And  sec  9  such  points  of  practice. 
Lea,  571  as  to  a  devisee. 

90 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  /O 

they  so  desire,  examine  all  the  witnesses  to  the  will  and 
introduce  counter  testimony,  the  judicial  hearin<j,  whether 
upon  contest  or  not,  concludes  the  validity  of  the  will ;  sub- 
ject, of  course,  to  vacating  probate  on  appeal,  the  submission 
of  issues  of  fact  to  a  jury,  impeachment  by  direct  proceeding, 
and  other  rights,  such  as  local  statutes  and  practice  may 
secure.  The  decision  of  the  county  judge  of  probate  is  that  of 
the  lower  tribunal  of  competent  original  jurisdiction,  and  con- 
cludes, while  undisturbed,  the  common-law  courts.^  And  the 
only  distinction  worthy  here  of  regard  is,  that  while  at  the 
probate  hearing  the  propounder  of  a  will,  who  anticipates  a 
contest,  must  be  prepared  to  prove  his  case  (subject  to  any 
adjournment  of  the  case  for  good  reasons),  probate,  where  no 
contention  arises,  may  be  granted  on  the  favorable  testimony 
of  a  single  subscribing  witness,  as  the  statutes  of  some  States 
expressly  provide.^ 

There  are  States,  however,  in  which  the  probate  in  solemn 
form  is  distinguished,  as  in  England,  from  that  in  common 
form,  and  where  the  due  citation  of  all  persons  in  interest  to 
witness  the  proceedings  and  the  production  of  the  will  in  open 
court,  for  proof  upon  testimony  which  they  may  fully  contro- 

^  Brown  v.  Anderson,  13  Geo.  171 ;  bound  to  have  all  the  suhscritjing  wit- 

1  Wms.  Exrs.  T)T,t„  Perkins's  n.  "  We  nesses  ready  to  testify  (three  or  more 
understand  a  probate  in  solemn  form  to  in  number,  as  some  States  require,  for  a 
be  a  probate  made  by  a  judge,  after  all  due  attestation),  even  though  the  attes- 
persons  whose  interests  may  be  affected  tation  clause  should  appear  perfect  and 
by  the  will  have  been  notified  and  had  the  will  regular  upon  its  face,  and  no 
an  opportunity  to  be  heard  on  the  sub-  one  objects  to  the  probate.  See  Allison 
ject."  Richardson,  C.  J.,  in  Noyes  v.  v.  Allison,  46  111.  61;  3  Redf.  Wills, 
Barber,  4  N.  H.  409.  And  see  Town-  37,  n.  This  appears  a  useless  formality 
send  V.  Tovvnsend,  60  Mo.  246;  Parker  and  expense  to  an  estate.  But  even 
V.  Parker,  11  Cush.  524;  Marcy  v.  though  all  parties  interested  waive  ob- 
Marcy,  6  Met.  367.  jection,  as  they  might  do  by  collusion, 

2  Mass.  Gen.  Stats,  c.  92,  §  19;    Dean  the    court    should    not,   we   apprehend, 

V.  Dean,  27  Vt.  746;    Rogers  v.  Winton,  admit  a  will  to  probate  without  calling 

2  Humph.  178  (as  concerns  a  will  of  for  another  witness  or  better  testimony, 
personal  property).  Such  a  statute,  in  if  the  single  subscribing  witness  fiiils  to 
aid  of  a  probate  jirocedure  so  inexpen-  make  satisfactory  proof,  and  the  valiility 
sive  as  ours,  secures  the  main  advantages  of  the  will  is  not  made  out  as  a  prima 
of  a    probate    in    common    form   while  facie  case. 

avoiding  its  obvio\is  disadvantages.    It  is  In  the  practice  of  some  States,  it  is 

very  desirable  that  this  enactment  should  customary  for  objectors  to  file  a  caveat 

be  general   in   the   United   States.      In  against  the  probate  of  a  will.      62  Md. 

some  States  the  propounder  of  a  will  is  342;  42  N.  J.  Eq.  346. 

91 


§  ^2  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

vert,  becomes  appropriate  to  contentious  cases,  or  else  calls 
for  an  executor's  discretion.^  In  such  States,  the  law  some- 
times limits  the  period  within  which  a  probate  in  common 
form  may  rightfully  be  contested.^ 

§  71.  Contest  over  Conflicting  Testamentary  Papers.  —  Contest 
may  arise  over  the  probate  of  conflicting  testamentary  papers, 
each  of  which  has  been  propounded  as  the  instrument  truly 
entitled  to  probate.  Here  the  object  being  to  ascertain 
which,  if  either  or  any  of  them,  embodies  in  testamentary 
form  the  last  wishes  of  the  deceased,  proof  of  the  instrument 
of  latest  date  comes  first  in  order.^  A  similar  rule  applies 
where  the  validity  of  particular  codicils  is  in  dispute. 

§  72-  Agreement  of  Parties  in  Interest  to  conform  to  an  In- 
valid "Will. —  Out  of  respect  to  the  wishes  of  a  deceased  per- 
son, all  parties  in  interest  in  his  estate  may  agree  to  carry  out 
provisions  of  a  certain  will  or  codicil,  which,  for  want  of  due 
execution  or  other  cause,  must  be  pronounced  invalid.  To 
such  agreements,  all  who  may  be  lawfully  entitled  to  share 
in  the  estate  and  its  benefits  (creditors  not  included)  should 
be  made  voluntary  parties.  Such  transaction.s,  in  fact,  stand 
upon  the  footing  of  general  dispositions  by  the  rightful 
owners  of  property,  and  cannot  operate  to  entitle  to  probate 
what  was  not,  in  the  legal  sense,  a  will.  But  where  a  pend- 
ing contest  has  been  adjusted  out  of  court,  by  all  the  parties 
interested,  and  opposition  is  withdrawn  to  the  particular  will 
propounded,  such  will  may  be  passed  to  probate  on  prima 
facie  evidence  of  its  validity,  leaving  private  arrangements 
concerning  the  distribution  of  the  estate  for  the  parties  to 
prove  and  enforce  in  other  courts,  or  carry  out  amicably 
among  themselves.* 

'Brown   v.  Anderson,    13  Ga.    171;  validity  of  a  will.     Martin  v.  Perkins, 

supra,  §  67.  56  Miss.  204. 

2  I    Wms.    Exrs.    335,  Perkins's  «.;         3  Lister  v.  Smith,  3  Sw.  &  Tr.  53. 
Parker  v.  Brown,  6  (iratt.  554;   Roy  v.         *  See  Greeley's  Will,  In  re,  15  Abb. 

Segrist,  19  Ala.  810  ;    Martin  v.  Perkins,  Pr.  N.  S.  393.     Courts  of  probate  have 

56  Miss.  204.     Probate  in  the  common  no  power  or  discretion  to  superadd  other 

form  cannot  be  pleaded  as  res  judicata  conditions  or  dispense  with  any  of  those 

in  a  direct  proceeding  to  determine  the  enumerated  in  the  statute  as  necessary 

92 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  73 

§  "]},.  The  Proof  needful  to  establish  a  Will ;  Proceedings  at 
the  Hearing  for  Probate.  —  The  party  who  propounds  a  will  for 
probate  should  be  prepared  to  prove  affirmatively  three 
things,  as  conformity  with  the  statutes,  English  or  Ameri- 
can, at  the  present  day  usually  demands  :  (i)  that  the  will 
was  in  writing  duly  signed  by  the  testator,  or  under  his 
express  direction  ;  (2)  that  the  will  was  attested  and  sub- 
scribed in  presence  of  the  testator  by  the  requisite  number 
of  competent  witnesses  ;  (3)  that  the  testator  at  the  time 
when  such  execution  took  place  was  of  sound  and  disposing 
mind.  In  other  words,  the  essentials  of  a  statute  execution 
must  be  shown  as  a  fact ;  and  further,  that  the  testator  was 
at  the  time  of  such  execution  in  suitable  testamentary  condi- 
tion ;  which  latter  essential  involves  several  elements,  as  we 
shall  presently  show,  not  easily  to  be  compressed  into  a  single 
verbal  expression. 

In  the  foregoing  respects,  and  in  general,  to  show  that  the 
instrument  propounded  was  the  testator's  last  will  and  testa- 
ment, the  burden  of  proof  rests  upon  the  party  who  offers  the 
instrument  for  probate ;  and  what  is  here  said  of  a  will 
applies  also  to  each  codicil  which  may  be  offered  with  it.^ 
And  inasmuch  as  the  burden  of  proof  rests  thus  upon  the 
proponent,  as  to  due  execution  of  the  alleged  testator's  com- 
petency, he  is  entitled  to  open  and  close  the  case  where  a 
jury  is  empanelled.^ 

But  the  usual  rules  of  evidence  apply  to  such  judicial  hear- 
ings. The  proponent  is  aided  by  legal  presumptions,  and  the 
burden  of  proof  may  shift  from  one  side  to  the  other  in  the 
course  of  a  hearing.  By  the  old  rule  of  the  English  eccle- 
siastical courts,  one  witness  could  not  make  full  proof  of  a 

to  admit  a  will  to  probate.   Doran  ?'.  Mul-         ^2  Wms.   Exrs.  20,  342;    Suiton  v. 

len,  78  III.  342.     A  New  York  surrogate  Sadler,  3  C.  B.  N.  S.  87  ;   Robinson  v. 

has  power  to  allow  the  proponent  of  a  Adams,   62    Me.    369;     Crowninshield 

will  whose  admission  was  contested,  to  v.  Crowninshield,  2  Gray,  524;   Taff  v. 

withdraw  the  same   from  probate;    but  Ilosmer,    14    Mich.   309;     Delalield    v. 

.f^w<?/^ not  the  testimony  and  proceedings  Parish,  25  N.  Y.  9;   Comstock  v.  Had- 

on  an  application   for  probate.     Heer-  lyme,  8  Conn.  254;    Evans  v.  Arnold,  52 

mans  v.  Hill,  4  Thomp.  &  C.  6o2;  Gree-  Ga.  169;   Gerrish  v.  Nason,  22  Me.  438. 
ley's  Will,  15  Abb.  Pr.  N.  S.  393.     Com-         ^Robinson  v.  Adams,  62  Me.  369; 

promises  are  permitted  by  local  statute.  Taff  v.  Hosmer,  14  Mich.  309. 

93 


§   73  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

will  ill  solemn  form  ;  ^  and  yet,  as  we  have  seen,  various 
American  statutes  now  permit  a  single  satisfactory  witness 
to  prov'e  a  will  which  no  party  in  interest  objects  to,^  while 
sound  modern  practice  here,  as  in  England,  insists  that  the 
rules  of  evidence  applicable  in  common-law  tribunals  shall  be 
observed  in  the  trial  of  all  questions  of  fact  before  the  court 
of  probate.^  The  party  who  has  the  burden  of  establishing 
a  will  gives  evidence  by  his  subscribing  witnesses  of  such 
facts  as  make  out  prima  facie  a  valid  testamentary  instru- 
ment ;  showing,  as  he  ought,  that  the  execution  was  formal 
and  regular,  with  respect  to  both  signature  of  the  testator 
and  the  attestation  ;  and  that  the  testator  appeared  to  be  of 
sound  and  disposing  mind  and  capacity.  The  proponent  sel- 
dom has  to  go  beyond  formal  proof  by  the  subscribing  wit- 
nesses (who,  from  their  peculiar  connection  with  the  testator 
and  his  instrument,  should  be  deemed  of  the  first  consequence 
in  the  proof),  and  possibly  one  or  more  of  these  may  be  dis- 
pensed with.  Whether  more  proof  be  requisite  ^on  his  part 
must  depend  upon  circumstances,  and  particularly  (the  instru- 
ment itself  appearing  regular  on  its  face)  upon  the  mode  and 
force  of  the  opposition  developed  at  the  hearing.  It  is  for 
the  contestant,  after  cross-examining  the  proponent's  wit- 
nesses, to  enter  upon  proof  of  alleged  incompetency  in  the 
testator,  or  other  ground  for  breaking  down  the  will,  before 
the  proponent  need  put  in  his  whole  case,  and  present  affirm- 
atively all  he  has  to  offer  on  such  an  issue.*  In  such  a  sense, 
but  not  more  emphatically,  it  may  be  said  that  when  the  pro- 

^  I  Wms.  Exrs.  342;  Evans  v.  Evans,  observes  the  court,  in  the  lucid  opinion 

I  Robert.  165.  here  pronounced,  "are  designed  to  elicit 

2  Supra,  §  70.     But  see  requirement  truth;    and  it  is  obvious  that  to  require 

of  a  New  York  statute  that  all  the  wit-  the  proponent  to  anticipate,  at  his  peril, 

nesses  shall  be  examined,  if  residents,  the   case   that  would  be  shown  by  the 

etc.    Swenartonz^.  Hancock,  22  IIun,43.  defence,  would,  in  many  cases,  be  equiv- 

^  See    English  statute  21   &  22  Vict,  alent  to  a  denial  of  justice.   For,  although 

^-   77>  §   2>2>   (court  of  probate,  act  of  there  would  still  be  a  right  to  give  re- 

1857),  to  this  effect,  cited  i  Wms.  Exrs.  butting  evidence,  this,  in   the  sense  in 

344;    Wright  V.  Tatham,   5  CI.  &  Fin.  which  rebutting  evidence  must  then  be 

670.     And   see    Hastings   v.   Rider,  99  understood,   would    be    of   little    value, 

Mass.  625,  per  Gray,  J.  since  it  must  be  confined  to  disproving 

*  .See  Cooley,  J.,  in  Taff  7,'.  Hosmer,  facts  and   circumstances  shown  by  the 

14  Mich.  309.     "  All  rules  of  evidence,"  defence." 

94 


CHAP.  II.]  PROBATE  Or  THE  WILL,  §  74 

poncnt  has  proved  the  duo  execution  of  a  paper  not  incom- 
patible in  its  structure,  language,  or  details,  with  sanity  in 
the  testator,  and  when,  upon  such  formal  testimony,  notwith- 
standing the  cross-e.xamination  of  his  own  witnesses,  it  is 
probable  that  the  will  was  executed  by  one  at  the  time  in 
competent  testamentary  condition,  the  burden  of  showing  the 
contrary  becomes  shifted  upon  the  contestants  of  the  will. 
And  should  the  contestants  thereupon  establish  incomi)etent 
testamentary  condition,  or  other  ground  for  refusing  probate 
of  the  will,  the  burden  shifts  back  to  the  proponent,  who,  as 
the  result  of  the  whole  hearing,  is  bound  to  establish  satis- 
factorily the  essentials  we  have  stated.  Fraud  or  undue 
influence  must  be  proved  by  those  who  allege  it.^ 

§  74.  Proof  of  the  Will ;  Instrument  to  be  in  "Writing,  and 
signed  by  the  Testator. — The  English  statute,  I  Vict.  c.  26, 
§  9,  concerning  the  execution  of  wills,  does  not  require  literally 
a  signature  by  the  testator  himself  ;  but  that  the  will  should 
be  in  writing  and  signed  by  the  testator  or  by  some  other 
person  in  his  presence  and  by  his  express  direction. ^  And 
such  is  the  expression,  likewise,  of  various  American  statutes 
as  to  any  testamentary  disposition,  whether  of  real  or  per- 
sonal estate,  or  both.^ 

Unless  a  statute  expressly  provides  as  to  the  place  of  sig- 
nature, the  testator's  name  need  not  be  signed  at  the  end  of 
the  instrument.  Thus,  where  a  whole  will  was  in  the  testa- 
tor's handwriting,  and  commenced,  "  I,  A.  B.,  do  make,"  etc., 
the  instrument  was  held,  in  conformity  with  analogous  in- 
stances under  the  Statute  of  Frauds,  to  have  been  sufficiently 
signed.^  But  the  signature,  whatever  its  position,  must 
have  been  made  with  the  design  of  authenticating  the  whole 

1  See  Milton  v.  Hunter,  13  Bush,  ferred  to,  should  be  kejit  in  mind  by 
163;   Schoul.  Wills,  Part  II.,  cs.  9,  10.  the  reader. 

2  I  Wms.  Exrs.  7th  ed.  66-68;  Schoul.  •'  Mass.  Gen.  Stats,  c.  92,  §  6.  See 
Wills,  Part  III.,  c.  2;  Bryce,  Iti  re,  2  exceptions  noted  hereafter  as  to  nuncu- 
Curt.  325.     Such  is  the  operation  of  the  pative  wills,  etc. 

F'nglish  statute,  I  Vict.  c.  26,  that  for-  ■*  Grayson    t.   Atkinson,  2  Ves.  454; 

mai  execution  was  not  essential  to  wills  Coles  v.  Trecothick,  9  Ves.  249;    .\danis 

of  personalty  made  in  England  prior  to  v.   Field,   21    Vt.   256.     See   Waller  '•. 

January,  1838.     This  fact,  already   re-  Waller,  i  Gratt.  454.     Modern  statutes 

95 


§  74  EXFXUTORS    AND    ADMINISTRATORS.  [PART    11. 

instrument  ;  and  the  natural  presumption  as  to  a  document 
to  which  one's  signature  has  not  been  appended,  is  that  full 
execution  was  not  meant. ^  One  signature  suffices,  especially 
if  it  be  in  its  natural  place  at  the  end,  though  the  will  were 
contained  in  several  pages  or  sheets,  provided  that  by  the 
handwriting,  the  fastening  together,  the  verbal  connection  of 
words,  or  otherwise,  it  satisfactorily  appears  that  all  the  pages 
or  sheets  were  intended  by  the  testator  to  be  embraced  by 
that  sufficient  signature.^  The  end  of  the  instrument,  pre- 
ceding the  attestation  clause  (if  there  be  one),  is  the  natural 
and  usual  place  of  signature  ;  and  the  Statute  of  Wills  in 
England  and  in  some  American  States  now  make  such  sub- 
scription imperative.^ 

The  testator  may  sign  his  will  by  making  his  "mark"  ;  and 
so  long  as  he  has  done  so  with  full  testamentary  intent,  and 
intelligently,  it  is  immaterial  whether  he  knew  how  to  write 
or  not.'^  The  mark  is  an  acceptable  signature  without  the 
name  itself  ;  and  as  the  addition  of  the  testator's  name  in  such 
cases  is  usually  made  by  some  other  hand,  clerical  errors, 
such  as  putting  the  maiden  name  of  a  married  woman  for  her 
name  by  marriage,  need  not  vitiate  the  instrument  if  properly 
explained.^  Signing  by  initials  of  the  name,  or  by  a  fictitious 
or  assumed  name,  or  without  expressing  the  name  in  the  body 
of  the  will,  has  been  pronounced  sufficient.^ 

do  not  generally  sanction  such  a  signa-  Wills,  226;   Glancy  v.  Clancy,  17  Ohio 

ture.     See  i  Vict.  c.  26;  Catlett  v.  Cat-  St.  134;   Sisters  of  Charity  v.  Kelly,  67 

lett,  55  Mo.  330.  N.  Y.  409;    Sovvard  v.  Soward,  I  Duv. 

^  See  I  Wms.  Exrs.  69;    i  Redf.  Wills,  126. 

4th  ed.  197;    Schoul.  Wills,  §  311-313.  *  Bryce,  In  re,  2  Curt.  325;    Baker 

2  And  this  though  the  attestation  v.  Dening,  8  Ad.  &  El.  94;  Nickerson 
clause,  through  some  inadvertence,  in-  v.  Buck,  12  Cush.  332;  Main  v.  Ryder, 
dicates  that  the  preceding  pages  or  84  Penn.  St.  217;  Jenkins,  Will  of,  43 
sheets  were  severally  signed.  Winsor  Wis.  610;  St.  Louis  Hospital  v.  Wil- 
V.  Pratt,  5  Moore,  484.  And  see  Jones  liams,  19  Mo.  609;  Schoul.  Wills,  §§ 
V.  Hal>ersham,  63  Ga.  146.     Aliter,  of  303,  304. 

course,  if  upon  the  whole  proof  it  ap-  ^  Clarke,  Goods  of,  i   Sw.  &  Tr.  22; 

pears  that  there  has  been  some  tamper-  Grubbs  v.  McDonald,  91  Penn.  St.  236. 

ing  with  the  sheets  or  pages;    since  only  To  make  one's  mark  on  the  paper  with 

that  which  was  intended  to  be  part  of  other   than    the    testamentary   intent    is 

a  will  at  the  time  of  execution  can  be  not  sufficient.     Enyon,  Goods  of,  21  W. 

probated.  R.  856. 

3  I  Wms.  Exrs.  67;  Schoul.  Wills,  «  Schoul.  Wills,  §§  303,  304;  Savory, 
§  312;   Stat.  I  Vict.  c.  26,  §  9;    I  Redf.  Re,  15  Jur.  1042. 

96 


CHAP.  II.]         PROBATE  OF  THE  WILL.  §  74 

The  testator's  name  may  be  written  by  .some  other  person, 
if  done  in  his  presence  and  by  his  express  direction,  even 
where  the  testator  does  not  make  his  mark.  This  sort  of 
execution,  however,  in  instruments  so  solemn,  is  so  unusual 
and  so  objectionable  on  principle,  that  the  fact  and  reason  for 
such  a  proceeding  as,  for  instance,  that  the  testator  was 
maimed  or  paralyzed,  ought,  in  common  prudence,  to  be  madf 
clearly  known  to  the  subscribing  witnesses,  and,  moreover, 
might  well  be  expressed  in  the  attestation  clause.  But  where 
the  testator's  signature  was  made  by  another  person  guiding 
his  hand  with  his  consent,  and  he,  being  evidently  clear 
in  mind  and  free  of  volition,  then  acknowledged  it,  the  sign- 
ing was  held  to  be  the  testator's  act,  and  sufficient.^  And, 
of  course,  the  testator's  actual  consent,  and  not  any  al- 
leged reason  for  signing  by  another,  is  the  ultimate  fact 
upon  which  the  validity  of  these  unusual  executions  must 
turn.2 

Wills  are  usually  written  out  on  paper  or  parchment,  and 
signed  in  ink ;  but  a  writing  and  signatures  in  lead  pencil 
satisfy  the  statute  requirement,^  as  it  has  been  held,  pro- 
vided that  all  appears  to  have  been  done  with  a  complete 
testamentary  purpose,  and  not  by  way  of  mere  draft  or  pre- 
liminary minutes.  The  use  of  a  seal  in  the  execution  of  a 
will  is  now  generally  dispensed  with  ;  some  have  thought  it 
efficacious  in  a  devise  of  lands,  however,  and  for  the  execu- 
tion of  a  power  specially  required  to  be  done  under  seal  it  is 
still  essential*     Authorities   generally  concede  that  sealing 

1  Wilson  V.  Beddard,  12  Sim.  28;    I  presumed.     Rolhvagen  v.  Rnllwagen,  5 

Redf.  Wills,  4th  ed.  205;   Schoul.  Wills,  Thomp.  &  C.  402;  Greenough  v.  Green- 

§§  306-308;   Vandruff  z/.  Rinehart,  29  ough,   11   Penn.  St.  489,     See  Schoul. 

Penn.  St.  232;    Haynes  v.  Haynes,  33  Wills,  §  308. 

Ohio  St.  598.    "  A.  B.  for  C.  D."    (CD.         2  Jenkins,  Will  of,  43  Wis.  610;   cases 

being  the  testator)  may  thus  be  shown  supra. 

to  be  a  good  sul)Scription.     Abraham  v.         ^  Myers  v.  Vanderbelt,  84  Penn.  St. 

Wilkins,  17  Ark.  292;   Vernon  v.  Kirk,  510.     And  especially  if  the  will  do  not 

30  Penn.  St.  218.     One  of  the  subscrib-  concern  real  estate.     Harris  v.  Pue,  39 

ing  witnesses  may  sign  for  the  testator.  Md.  535      See  Schoul.  Wills,  §  258. 
Bailey,  Re,  I  Curt.  914.     The  evidence         ^  i    Redf.   Wills,  4th  ed.   201,   226; 

should  not  leave  the  testator's  consent  Pollock  v.  Glasscl,  2  Gratt.  439;    Hight 

in  such  a  case  very  doubtful;   that  the  v.  Wilson,  I  Dall.  94. 
other  wrote  at  his  request  will  not  be 

97 


§  75  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

alone  is  not  a  good  execution  where  the  statute  calls  for  a 
signature.^ 

^  75.  Signing  by  the  Testator;  Subject  continued;  Publica- 
tion, etc.  —  Presumptions  favorable  to  the  due  execution  of  a 
will  may  be  rebutted.  As  a  general  rule,  however,  the  sub- 
scription and  execution  of  a  will  in  the  mode  prescribed  by 
law  sufficiently  imports  that  it  speaks  the  language  and  wishes 
of  the  testator.  Proof  that  the  will  of  an  illiterate  testator 
was  read  over  to  him  is  held  to  be  not  essential,  provided 
there  was  due  execution.^  But  all  proof  of  a  will  must  con- 
sist with  a  full  comprehension  of  its  contents  and  an  intelli- 
gent execution  ;  and  where  the  testator  was  blind  or  could 
neither  read,  write,  nor  speak,  there  should,  according  to  the 
safer  authorities,  be  proof  not  only  of  the  factum  of  his  will, 
but  that  the  mind  of  the  testator  accompanied  the  execution  ; 
and  that  he  knew  and  understood  the  contents  of  the  instru- 
ment as  expressive  of  his  testamentary  intentions.^  If  a  tes- 
tator can  read  and  write,  his  signature,  duly  ma'de,  imports 
knowledge  of  the  contents  of  the  paper  executed  as  his  will ; 
in  other  and  peculiar  instances,  the  proof  of  testamentary 
knowledge  and  intent  should  be  clearer,  though  not  neces- 
sarily conclusive,  nor  upon  the  point  of  doubt  limited  to  any 
particular  fact  or  circumstance  consistent  with  making  out  a 
prima  facie  case  of  intelligent  execution.*  Where  witnesses 
to  a  will  are  required  to  attest  and  subscribe  the  will  in  the 
testator's  presence  and  at  his  request,  it  is  not  imperative 
that  the  request  should  be  express  nor  that  it  should  proceed 
immediately  from  the  testator  himself.  Thus,  the  person 
who  prepared  the  will  might  call  in  persons  to  attest  when 
all  was  ready  ;  and  from  such  request  complied  with  in  the 
presence  and  hearing  of  the  testator,  who  makes  no  objection, 
but  tacitly  approves,  the  latter's  request  in  contemplation  of 

^  1  Jarm.  Wills,  78;   Smith  v.  Evans,  Rollwagen  v.  Rollwagen,  63  N.  Y.  504; 

I    Wils.    313;    conh-a,    3    Lev.    I,   and  Ray   v.    Hill,    3   Strobh.  297;    Schoul. 

variijus  old  English  cases;  Schoul.  Wills,  Wills,  §  317. 

§  309.  4  Frear    v.    Williams,    7    Baxt.    550; 

■^  King  V.  Kinsey,  74  N.  C.  261.  Meurer's  Will,  44  Wis.  392;   Harris  v 

8  Sweet  V.  Boardman,  i   Mass.  262;  Harris,  53  Ga.  678. 

98 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §   75 

law  is  to  be  inferred.^  But  the  testator's  condition  and  sur- 
rounding circumstances  must  always  be  considered  ;  and  if, 
while  the  testator  is  feeble,  or  hardly  conscious,  or  of  doubt- 
ful capacity  or  volition,  another  person  assumes  the  functions 
of  spokesman  and  director  before  the  witnesses  at  the  execu- 
tion, an  adoption,  at  least,  of  that  person's  acts  on  the  testa- 
tor's behalf  must  appear.'^ 

The  testator  need  not  declare  in  words  to  the  subscribing 
witnesses  that  the  instrument  which  they  are  called  to  wit- 
ness is  his  will,  though  it  would  be  wise  for  him  to  do  so; 
but  by  acts  and  words  he  may  make  it  sufficiently  clear  to  his 
witnesses  that  he  so  accepts  and  regards  the  instrument.* 
No  particular  form  is  requisite  for  acknowledgment,  nor  is  it 
important  in  what  order  the  several  acts  of  execution  occur, 
only  that  the  testator  should  sign  before  his  witnesses.*  That 
the  testator  need  not,  and  usually  does  not,  make  known  the 
contents  of  his  will,  at  the  time  of  execution,  is  certain. 

Statutes  differ,  however,  in  respect  of  such  requirements, 
and  in  some  States  the  subscription  must  be  animo  testandi, 


1  Coffin  V.  Coffin,  23  N.  Y.  9;  Mairs  other  pul)lication  thereof.  Swinburne 
z/.  Freeman,  3  Redf.  181 ;  Cheatham  z'.  gives  a  good  reason  why  the  testator 
Hatcher,  30  Gratt.  56;  Bundy  v.  Mc-  might  fail  to  disclose  his  true  purpose, 
Knight,  48  Ind.  502.  "because  the  testator  is  afraid  to  offend 

2  Heath  v.  Cole,  15  Hun,  100,  such    persons   as    do   gape  for   greater 
^  Some  cases  justify  a  testator  in  con-  bequests  than  either  they  have  deserved 

cealing  that  the  instrument  was  his  will,  or  the  testator  is  willing  to  i)estow  upon 
*  Some  of  our  American  statutes  may  them;  lest  they,  peradventure,  under- 
explicitly  sanction  an  execution  without  standing  thereof,  would  not  suffer  him 
any  publication.  In  I  Redf.  Wills,  4th  to  live  in  quiet;  or  else  he  should  over- 
ed.  219,  220,  such  a  practice  is  regarded  much  encourage  others,  to  whom  he 
with  disfavor.  In  Trimmer  v.  Jackson,  meant  to  be  more  beneficial  than  they 
4  Burn.  Eccl.  Law,  9th  ed.  102,  the  expected;  and  so  give  them  occasion 
testator  led  his  witnesses  to  believe  that  to  be  more  negligent  husbands  or  stew- 
the  instrument  they  executed  was  a  ards  about  their  own  affairs  than  other- 
deed,  not  a  will;  but  the  execution  was  wise  they  would  have  been  if  they  had 
adjudged  sufficient.  And  see  Osborn  v.  not  expected  such  a  benefit  at  the  testa- 
Cook,  II  Cush.  532;  Hulse's  Will,  Re,  tor's  hands  (or  for  some  other  consider- 
52  Iowa,  662;  I  Wms.  Exrs.  89;  British  ations)."  Swinb.  pt.  i,  §  n.  All  this 
Museum  v.  White,  3  M.  &  P.  689.  It  points,  however,  rather  at  disclosing  the 
should  be  observed  that  Stat,  i  Vict,  contents  of  one's  will,  than  at  his  recog- 
c.  26,  §  13,  declares  expressly  that  nition  of  the  instrument  as  testamentary, 
every  will  executed  in  the  manner  Cf.  New  York  and  New  Jersey  rule, 
prescribed   shall  be  valid  without   any  Schoul.  Wills,  §  326. 

99 


§   'j6  EXECUTORS    AND    ADMINISTRATORS,  [PART    II. 

and  a  paper  is  not  entitled  to  probate  which  neither  the  tes- 
tator, nor  some  one  duly  authorized  on  his  behalf,  has  given 
the  witnesses  to  understand  was  his  will ;  ^  which,  on  the 
whole,  appears  to  be  the  more  commendable  doctrine.  The 
formal  signature  need  not  be  actually  made  in  the  presence 
of  the  witnesses,  provided  the  testator  gives  them  plainly  to 
understand  that  the  will  and  signature  are  his  own.^ 

§  "jG.  Proof  of  the  "Will ;  Subscribing  Witnesses.  —  Formerly, 
in  England,  as  we  have  seen,  no  witnesses  to  the  execution 
or  publication  of  a  will  of  personal  property  were  considered 
essential,  still  less  any  subscribing  witness  ;  formal  publica- 
tion was  merely  for  convenience.  Wills  of  lands  were,  on 
the  other  hand,  under  the  Statute  of  Frauds,  to  be  attested 
and  subscribed  more  formally,  or,  as  it  was  said,  "  by  three  or 
four  credible  witnesses."  Acts  of  Parliament  attempted  an- 
other distinction  with  reference  to  stock  in  the  public  funds. 
But,  under  the  act  of  i  Vict.  c.  26,  §  9,  no  will  executed  on 
and  after  January  i,  1838,  can  be  valid,  unless  the  testator's 
signature  is  made  or  acknowledged  in  the  presence  of  two  or 
more  witnesses  ;  and  this  requirement  applies  to  every  de- 
scription of  property,  real  and  personal.^  For  every  testa- 
mentary disposition  of  property,  two  subscribing  witnesses 
are  requisite  at  this  day  in  most  parts  of  the  United  States  ; 
in  Massachusetts  and  several  other  States  there  must  be 
three  ;  while  a  few  States  unwisely  discriminate  still,  as 
between  wills  of  real  and  of  personal  estate.*  The  old  Span- 
ish law  which  favored  holograph  wills  (or  such  as  a  testator 
writes  out   in  his   own  hand)  impresses  the  codes  of   some 

1  Swett  V.  Boardman,  I  Mass.  258;  witnesses,  as  also  South  Carolina,  Flor- 
Roberts  t'.  Welch,  46  Vt.  164;  Swift  z/.  ida,  and  Georgia.  In  New  York  two 
Wiley,  I  B.  Mon.  117;  Taney's  Estate,  witnesses  suffice,  and  the  same  may  be 
Myrick  (Cal.)  210.  said  of  the  Middle  and  Western  States 

2  See  Schoul.  Wills,  §§  321-325;  quite  generally.  Except,  perhaps,  for 
Adams  v.  Field,  2i  Vt.  256;  Loy  v.  mean  and  sparsely-settled  neighbor- 
Kennedy,  I  W.  &  .S.  396;  Upchurch  v.  hoods,  the  New  England  rule  appears 
Upchurch,  16  B.  Mon.  102;  I  Wms.  the  better  one,  for  a  testamentary  instru- 
Exrs.  88,  and  cases  cited.  ment  becomes  thus  readily  distinguished 

^  I  Wms.  Exrs.  7th  ed.  66,  86.  from  other  formal  writings,  and  there'is 

*  The  New  England  States  now  insist  less  inducement  to  fraud.  See  SchouL 
(or  have    done   so   lately)   upon    three     Wills,  §  321. 

100 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §   "J^ 

south-western  States,  so,  in  some  instances,  as  altogether  to 
dispense  with  subscribing  witnesses  for  such  a  will.^  As  to 
witnesses  and  attestation,  other  peculiar  provisions,  which 
need  not  here  be  specified,  are  embodied  in  the  legislation 
of  individual  States  by  way  of  exception  to  the  American 
rule.2 

"Credible  witnesses"  were  required  under  the  Statute  of 
Frauds,  and  "competent  witnesses"  (to  quote  the  language 
of  some  American  codes)  must  still  be  employed.^  Under 
either  form  of  expression,  persons  beneficially  interested 
under  the  will  cannot  serve ;  and  those  called  in  by  a  testa- 
tor to  witness  an  instrument  whose  contents  he  keeps  to 
himself  may  generally  assume  that  he  has  willed  them  noth- 
ing. A  will  of  freehold  estate  attested  by  persons  found  to 
be  beneficially  interested  therein  was  pronounced  invalid 
long  ago  ;  and  this  not  only  as  to  the  part  which  created  their 
interest,  but  as  a  whole ;  and  after  much  controversy,  the 
English  courts  appear  to  have  settled  down  to  the  theory  that 
credibility  was  so  fundamental  to  a  proper  execution,  that  the 
release  of  his  interest  by  such  a  party  at  the  time  of  judicial 
inquiry  could  not  restore  his  competency,  nor  the  sufficiency 
of  the  will.*  Hence,  inasmuch  as  great  injustice  might  thus 
be  done  by  a  witness  unconsciously,  an  act  whose  provision 
by  extension  to  wills  of  both  real  and  personal  estate,  under 
I  Vict.  c.  26,  §  15,^  annuls  the  interest  of  each  attesting 
witness  beneficialb'^  interested,  and  renders  him  fully  compe- 

1  See  statutes  of  Louisiana,  North  sary.  i  Wms.  Exrs.  ib.;  and  see  Schoul. 
Carolina,    Mississippi,    California,    Ar-     Wills,  §  256. 

kansas,   Tennessee,    etc.,    as    to    holo-  ^  See,  e.g.,   i  Wms.  Exrs.  87;    Mass. 
graph  wills;    i  Wms.  Exrs.  67,  7th  ed.,  Gen.  Stats,  c.  92,  §  10. 
note   by    Perkins;    Fuqua,    Succession  *  i  Jarm.  Wilis,  65;   Doe  v.  Hersey, 
of,    27    La.    Ann.    271 ;     Douglass    v.  4  Burn.  Ecc.  L.  27. 
Harkrender,    59    Tenn.    114;     Schoul.  *  The  ecclesiastical  courts  had  mean- 
Wills,  §  255.  time   insisted    that  the   statute  require- 

2  See  I  Wms.  Exrs.  67,  note  by  Per-  ment  of  "  credible  witnesses  "  was  lim- 
kins.  In  Pennsylvania,  for  instance,  it  ited  in  expression  to  wills  and  codicils 
would  appear  that  reducing  the  will  to  of  real  estate,  and  had  no  application 
writing  in  pursuance  of  the  testator's  to  personalty,  wills  of  which  might  be 
directions  is  sufficient ;  that  these  facts  witnessed  by  legatees,  so  as  to  leave  the 
may  be  proved  by  two  witnesses;  and  legacy  good.  Wms.  Exrs.  7th  Eng.  ed. 
that  formal  publication  and  attestation  1053;  Brett  v.  Brett,  3  Add.  210;  Fos- 
by  subscribing  witnesses  are  unneces-  ter  v.  Banbury,  3  Sim.  40. 

lOI 


§  76  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

tent  to  prove  the  validity  or  invalidity  of  the  will.^  In 
American  States,  correspondingly,  the  local  statute  must  be 
the  guide.  "Competent"  witnesses  are  expressly  required 
for  the  execution  of  a  will  in  Massachusetts  ;  but  it  is  further 
enacted  that  if  the  witnesses  are  competent  at  the  time  of 
attesting  the  execution  of  the  will,  their  subsequent  incom- 
petency, from  whatever  cause  arising,  shall  not  prevent  the 
probate  and  allowance  of  a  will  otherwise  proved  satisfac- 
torily.2  jn  other  States  the  legislature  has  employed  different 
phrases  or  observed  silence  in  this  respect.-^  Disqualification 
by  reason  of  interest,  that  common  law  doctrine  upon  which 
our  later  legislation  so  greatly  infringes,  has  a  peculiar  signifi- 
cance in  the  present  connection  ;  for  the  public  welfare  still 
demands  that  one's  last  wishes  be  authenticated  by  persons 
who  are  wholly  detached  from  his  estate,  and  stand,  so  to 
speak,  between  the  dead  and  the  living.  These  witnesses  are 
in  a  measure  judges  of  the  facts  attending  the  execution  of 
the  only  kind  of  instrument  which  a  principal  signer  cannot 
possibly  take  part  in  establishing ;  they  surround  the  testator 
at  a  critical  moment  to  protect  him  from  frauds  which  might 
be  practised  upon  his  infirmity  or  debility ;  and  hence  they 
should  be  kept  totally  free  from  every  temptation  to  bias  or 
importunity.  If  a  person,  called  upon  to  subscribe  as  such  a 
witness,  thinks  the  testator  incapable  of  making  his  will,  he 
may  and  should  refuse  to  attest."^ 

1  For  the  precise  language   of  this  ing  witness.     Hawkins  v.  Hawkins,  54 

enactment,  see  Stats.  25  Geo.   2,  c.  6,  Iowa,  443. 

and  I  Vict.  c.  26,  §  15,  cited  Wms.  ^  Mass.  Gen.  Stats,  c.  92,  §  6.  In 
Exrs.  7th  Eng.  ed.  1054.  A  devise  or  other  New  England  States,  legislation 
legacy  to  the  husband  or  wife  of  the  is  to  the  same  purport.  Frink  v.  Pond, 
attesting  witness  may  thus  be  annulled.  46  N.  H.  125.  And  recent  statutes, 
But  only  a  beneficial  interest  fails;  a  which  extend  the  competency  of  inter- 
bequest  to  the  witness  in  trust  for  an-  ested  witnesses  and  original  parties  to 
other  is  not  necessarily  void.  Creswell  testify  in  civil  and  criminal  proceedings, 
V,  Creswell,  L.  R.  6  Eq.  69.  And  see  make  e.\press  exception  of  the  attest- 
Loring  v.  Park,  7  Gray,  42.  And  the  ing  witnesses  to  a  will  or  codicil.  See 
annulment  applies  only  to  the  instru-  Mass.  Gen.  Stats,  c.  131,  §§  13,  15; 
ment  actually  attested,  and  not  so  as  to  Stat.  1870,  c.  393;  McKeen  v.  Frost, 
invalidate  one's  interest  under  another  46  Me.  248. 

will   or  codicil.     Tempest  v.  Tempest,  ^  An    interested    person    may    be    a 

2  Kay  &  J.  635.     In  Iowa  the  fact  that  competent  witness  in  some  States.  Estey 

the  husband  is  a  legatee  does  not  ren-  v.  Morris,  38  Md.  417. 
der  his  wife  incompetent  as  a  subscrib-  *  See,  on  this   point,  Wilde,  J.,  in 

102 


CHAP.    II.] 


PROBATE    OF    THE    WILL. 


^77 


§  yy.  Proof  of  the  Will ;  Mode  of  Attestation  by  Witnesses. 
—  Like  the  testator  himself,  the  witness  may  sign  by  mark, 
by  initial,  or  by  fictitious  name,  though  not  by  seal  ;  his  hand 
may  be  guided  by  another  if  he  cannot  write  ;  and  the  further 
precautions  against  fraud  correspond  in  the  two  cases.^  The 
English  statute  is  so  construed,  however,  as  to  demand  a 
literal  "subscription"  by  the  witness,  in  the  testator's  pres- 
ence, and  after  him,  either  by  name  or  mark  ;  not  permitting 
one  to  adopt  a  previous  signature  made  by  himself  or  by  any 
other  person,  as  a  testator  might  do ;  ^  which  rule,  most 
American  States  follow,^  but  not  all.*     The  place  of  attesta- 


Hawes  v.  Humphrey,  9  Pick.  356.  In 
States  which  require  competent  wit- 
nesses, beneficial  devises,  legacies,  and 
gifts  to  subscribing  witnesses  are  usually 
declared  void,  as  in  England.  See 
Sullivan  v.  Sullivan,  106  Mass.  474, 
where  it  is  held  that  a  bequest  to  wife 
or  husband  of  the  witness  is  annulled 
by  implication.  The  wife,  according  to 
the  better  opinion,  should  not  be  witness 
to  her  husband's  will,  nor  the  husband 
to  his  wife's  will.  Pease  v.  AUis,  no 
Mass.  157;  Dickinson  v.  Dickinson,  61 
Penn.  St.  401.  As  to  an  executor,  he 
is  not  generally  thought  incompetent, 
even  though  his  right  to  commissions 
gives  him  a  sort  of  pecuniary  interest. 
Stewart  v.  Harriman,  56  N.  H.  25; 
Wyman  v.  Symmes,  10  Allen,  153. 
Stat.  I  Vict.  c.  26,  §  17,  declares  ex- 
pressly that  an  executor  shall  not  be 
incompetent.  Wms.  Exrs.  345.  Never- 
theless, we  regard  an  executor  as  a 
most  undesirable  person  for  subscribing 


In  the  United  States,  as  in  England, 
competency  has  reference,  not  to  the 
time  of  probate,  but  to  the  time  when 
the  will  was  executed.  See  expression 
in  Mass.  Gen.  Stats,  c.  92,  §  6,  supra; 
Patten  v.  Tallman,  27  Me.  17.  A  con- 
victed criminal  is  in  some  instances  held 
to  be  disqualified  from  becoming  a  sub- 
scribing witness;  as  well  as  a  young 
child  or  idiot,  i  Greenl.  Ev.  §  373. 
But  one  competent  at  the  time  of  exe- 
cution would  not  become  disqualified 
because  of  subsequent  crime  or  insan- 
ity. 

1  I  Wms.  Exrs.  94,  95;  Ashmore, 
Goods  of,  3  Curt.  756;  Christian,  Goods 
of,  2  Robert,  no;  Byrd,  Goods  of,  3 
Curt.  117;  Thompson  v.  Davitte,  59 
Ga.  572.     Schoul.  Wills,  §§  331,  332. 

2  I  Redf.  Wills,  230,  231 ;  Hind- 
marsh  V.  Charlton,  8  H.  L.  Cas.  160; 
I  Wms.  Exrs.  95,  96 ;  Eynon,  Goods  of, 
L.  R.  3  P.  &  D.  92. 

^  Chase  v.   Kittredge,    1 1    Allen,  49, 


witness,  and  in  a  close  contest  the  bias    per  Gray,  J.,  where  the  subject  is  care- 


of  his  evident  interest  may  prove  dam- 
aging to  his  testimony,  and  break  down 
the  will.  On  all  these  points  and  the 
general  question  of  competency,  see 
further  2  Greenl.  Ev.  §  691;  Wms. 
Exrs.  87,  M.  by  Perkins,  citing  numerous 
authorities;  Schoul.  Wills,  §§  350-358. 
In  some  States  the  release  of  his  legacy 
at  the  time  of  probate  will  make  the 
witness  competent.  Nixon  v.  Armstrong, 
38  Tex.  296. 

103 


fully  examined;    Mitchell  v.  Mitchell,  16 
Hun,  97;    Schoul.  Wills,  §  328. 

*  Pollock  V.  Glassell,  2  Gratt.  439; 
Sturdivant  v.  Birchett,  10  Gratt.  67. 
Judge  Redlield  considered  the  English 
rule  on  this  point  as  an  unreasonable 
refinement.  I  Redf.  Wills,  4th  ed.  230, 
w.  The  Pennsylvania  statute  does  not 
insist  upon  "  subscription."  Miller  v. 
McNeill,  35  Penn.  St.  217. 


§  y"]  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

tion  is  immaterial  where  the  statute  is  silent,  provided  the 
suitable  act  and  intent  of  attestation  be  shown  ;  and  this, 
notwithstanding  the  testator  himself  is  required  to  sign  at 
the  end.^ 

It  might  be  inferred  from  the  language  of  the  new  English 
statute,  requiring  the  two  witnesses  to  be  "  present  at  the 
same  time,"  that  they  must  attest  the  execution  of  the  will  in 
the  presence  of  each  other ;  but  the  true  construction  appears 
to  be  that  they  must  attest  in  the  presence  of  the  testator, 
and  after  he  has  signed  or  acknowledged  his  signature  while 
both  were  actually  present  together,  but  that  attestation  in 
the  presence  of  each  other  is  not  essential.^  Different  legis- 
lative expressions  call  for  a  different  local  construction,  and 
in  several  States  mutual  presence  of  the  witnesses  is  so  far 
dispensed  with  that  a  will  attested  by  witnesses  who  sepa- 
rately and  at  different  places  subscribe  their  names  at  the 
testator's  request  is  well  executed.^  The  conscious  and  con- 
tinuous testamentary  intent  of  the  testator  should  last  how- 
ever through  the  whole  period  of  execution.* 

Attestation  in  the  presence  of  the  testator  is,  moreover, 
explicitly  demanded  by  the  English  and  most  American  acts 
on  this  subject;  and  hence  a  series  of  decisions,  which,  start- 
ing with  the  assumption  that  a  testator  must  have  ocular 
evidence  of  the  instrument  which  his  witnesses  attest,  while 
admitting,  as  they  should,  that  his  corporal  presence  will  not 
suffice  unless  he  appeared  conscious  of  their  attestation,  are 
forced  into  some  close  refinements  over  the  wills  of  blind 
men,  invalids  lying  in  bed,  and  the  like.^     Some  States,  how- 

1  Davis,  Goods  of,  3  Curt.  748;  ^  Dewey  v.  Dewey,  I  Met.  349; 
Roberts  v.  Phillips,  4  El.  &  Bl.  450;  i  Hogan  v.  Grosvenor,  10  Met.  54;  Gay- 
Wms.  Exrs.  96;  Potts  v.  Felton,  70  lord's  Appeal,  43  Conn.  82.  On  the 
Ind.  166.  But  statutes  which  point  out  other  hand,  under  the  Vermont  statute, 
where  the  subscribing  witnesses  shall  witnesses  must  subscribe  in  the  presence 
put  their  signatures  must  be  complied  of  each  other.  Blanchard  v.  Blanchard, 
with.  Heady's  Will,  15  Abb.  Pr.  N.  S.  32  Vt.  62.  And  see  as  to  insufficiency, 
211.  Patterson    v.    Ransom,    55    Ind.   402; 

2  I    Redf.  Wills,  231,  «.;    Moore  v.  Baker  v.  Woodbridge,  66  Barb.  261. 
King,  3  Curt.  243;    Cooper  v.  Bockett,         *  See    Stiles,    Matter     of,    2    Redf. 
3  Curt.  648;    4  Moore,   P.  C.  419;    2  (N.  Y.)  i. 

Wms.  Exrs.  90.  But  cf.  Casement  v.  ^  Lonford  v.  Eyre,  i  P.  Wms.  740; 
Fulton,  5  Moore,  P.  C.  130.  Piercy,  Re,  I    Robert    278;    Reynolds 

104 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  jS 

ever,  dispense  with  a  subscription  in  the  testator's  presence, 
and  thus  avoid  the  legal  difficulties  of  a  so-called  constructive 
presence.^  Consistent  and  intelligent  execution,  taken  as  a 
whole,  and  a  fair  connection  between  witnesses  and  testator 
in  the  legal  formalities,  should  appear  under  all  circum- 
stances. 

§  y8.  Proof  of  the  Will  ;  Attestation  Clause.  —  A  perfect 
attestation  clause  must  aid  greatly  in  establishing  the  regu- 
larity of  a  will,  for  this  affords  plain  written  evidence  of  a 
testamentary  execution,  and  freshens  the  memory  on  points 
readily  forgotten.  The  effect  of  the  statement  in  an  attes- 
tation clause,  that  the  will  was  signed  by  the  witnesses  in  the 
presence  of  the  testator,  and  of  each  other  and  at  his  request 
(or  in  such  other  language  as  the  statute  may  direct),  would 
be  to  throw  the  burden  of  proving  that  it  was  not  so  signed, 
and  that  the  execution  was  irregular,  upon  the  opponents  of 
the  will,  and  to  discredit  any  subscribing  witness  who  should 
undertake  so  to  testify.^  In  absence  of  positive  statute 
requirements,  neither  will  nor  attestation  clause  need  state 
the  place  of  execution  ;  ^  but  the  date  of  the  will  is  usually 
given,  and  the  presumptive  evidence  thus  afforded  may  be  of 
some  legal  consequence.     No  particular  form  of  attestation, 

V.  Reynolds,  i  Speer,  256;  i  Wms.  ful  counsellor  will  insist,  wherever  he 
Exrs.  91-93,  a-nd  numerous  cases  cited;  may,  that  witnesses  and  testator  shall 
Schoul.  Wills,  §§  340-343;  Etchison  v.  all  execute  in  one  another's  presence, 
Etchison,  53  Md.  348.  The  conclusion  and  at  the  same  time;  the  testator  first 
(and  an  unsatisfactory  one,  too),  to  writing  out  his  name  and  acknowledging 
which  these  .authorities  are  pushed,  his  will,  and  the  witnesses  in  turn  sub- 
appears  to  be  that  the  testator  might  scribing  afterwards  to  a  formal  attesta- 
have  seen,  and  not  that  he  did  see,  the  tion  clause. 

witnesses  sign.     Trimnell,  Goods  of,  11  ^ -pappen  v.  Davidson,  27  N.J.  Eq. 

Jur.  N.  S.  248;    I  Wms.  Exrs.  93,  «.;  459;    Schoul.  Wills,  §  346.      And   see 

Meurer's  Will,  44  Wis.  392.      And  so  Roberts   v.    Phillips,    4   E.    &    B.   457. 

correspondingly,  where  a  statute  requires  Want  of  recollection  on  the  part  of  the 

witnesses  to  sign  in  one  another's  pres-  subscribing  witnesses  is  not  enough  to 

ence.     Blanchard  v.  Blanchard,  32  Vt.  overcome  the  presumption  arising  from 

62.  their  certificate   that  the  facts  were  as 

1  Arkansas,  New  York,  and  New  Jer-  certified.     Meurer's  Will,  44  Wis.  392. 

sey,  for  instance.    4  Kent,  515;    I  Wms.  And  see  Carpenter  v.  Denoon,  29  Ohio 

Exrs.  67,   «.  by  Perkins;  Schoul.  Wills,  St.  379. 

§§  340-343.   Doubtless,  however,  a  care-  •*  Hall,  Succession  of,  28  La.  .\nn.  57. 

105 


5  79  EXECUTORS    AND    ADMINISTRATORS.  [PART    II, 

however,  is  requisite  under  the  English  statute,^  nor  proba- 
bly in  most  American  States  ;  but  a  sufficient  number  of 
witnesses  may  subscribe  their  names  without  any  express 
attestation  clause  whatever ;  in  which  case  circumstantial 
proof  that  the  attestation  was  proper  should  be  supplied  at 
the  probate  hearing.^ 

Recitals  of  an  attestation  clause  may  supply  the  defect  of 
positive  testimony  as  to  what  transpired  in  connection  with 
the  signature  of  the  testator  and  the  subscription  by  his  wit- 
nesses. And  the  failure  of  recollection  of  the  subscribing 
witnesses  as  to  what  occurred  at  the  time  of  the  signing  will 
not  defeat  the  probate  of  the  will,  if  the  attestation  clause 
and  the  surrounding  circumstances  consistently  establish  its 
due  execution.^ 

§  79.  Proof  of  the  "Will ;  Suitable  Testamentary  Condition  on 
the  Part  of  the  Testator.  —  Besides  proof  of  genuine  execution 
as  the  statute  may  have  directed,  on  the  part  of  both  testator 
and  his  witnesses,  the  proponent  of  the  will  must  be  prepared 
to  show  affirmatively  that  the  testator,  at  the  time  of  such 
execution,  was  in  suitable  testamentary  condition.  Suitable 
testamentary  condition  appears  to  involve  three  prime  ele- 
ments :  (i)  That  the  testator  was  of  sound  and  disposing  mind 
and  memory,  capable  of  understanding  the  nature  of  the  act 
he  was  performing,  and  the  relation  in  which  he  stood  to  the 
objects  of  his  bounty  and  to  those  upon  whom  the  law  would 
have  bestowed  his  property  had  he  died  intestate.  (2)  That 
he  executed  the  will  as  his  own  voluntary  act,  free  from 
the  fraud,  coercion,  or  undue  influence  of  those  about  him. 
(3)  That  he  had  the  testamentary  purpose  in  so  executing, 
and  understood  the  instrument  to  be  his  last  will  and  testa- 
ment.^ Where  the  instrument  presented  for  probate  appears 
quite  consistent  with  all  requirements  in  these  respects,  and 

1  Stat.  I  Vict.  c.  26,  §  9,  is  explicit  on  signatures  may  follow  the  word  "  wit- 
this  p(nnt.  ness  "  opposite  the  principal  signature. 

2  I  Wms.  Exrs.  93;  Bryan  v.  White,  Osborn  v.  Cook,  11  Cush.  532;  Fry's 
2    Robert.    315;     Ela   T/.    Edwards,    16  Will,  2  R.  I.  88. 

Gray,  91 ;    Schoul.  Wills,  §  346.     Thus,  3  Rugg  v.  Rugg,  %Ty  N.  Y.  592. 

as  in  the  case  of  ordinary  writings,  the         *  Barker  v.  Comins,  no  Mass.  477. 

106 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  79 

executed  after  the  required  forms  besides,  a  simple  question 
to  the  witness  as  to  the  testator's  apparent  soundness  of 
mind  may  suffice  ;  not  so,  however,  if  by  cross-examination 
of  the  witness,  or  otherwise,  the  proponent's  case  is  shaken  ; 
for  although  an  adult  may  be  presumed  to  execute  a  writing 
while  in  his  senses  and  free  from  constraint,  the  testamentary 
act  is  of  all  acts  liable  to  sinister  influences  when  performed 
by  the  sick,  feeble,  and  dying.  And  the  burden  being  accord- 
ingly upon  the  proponent  of  a  will  to  establish  full  testa- 
mentary condition  and  capacity  in  the  testator,  no  mere 
presumption  of  sanity  and  free  will  can  avail  as  an  indepen- 
dent fact  to  outweigh  proof  to  the  contrary  ;  but  the  issue  in 
all  such  contests  is,  whether  the  will  in  question  was  the 
free  act  and  will  of  a  competent  testator.^  Whatever  goes 
to  impeach  the  validity  of  the  instrument  offered  should  be 
open  to  the  fullest  investigation  at  all  contested  hearings ;  and 
the  simple  circumstance  that  the  will  is  partial  and  unreason- 
able in  its  provisions  may,  in  cases  of  doubt,  cause  a  prepon- 
derance against  its  admission  to  probate,  especially  if  the 
party  to  be  chiefly  benefited  under  it  showed  an  officious 
and  unbecoming  zeal  in  procuring  its  execution.^     And  even 


1  McGinnis    v.    Kempsey,    27    Mich,  lunatics,  not  from  birth  alone,  but  made 

363;    Barry  v.  Boyle,   i    Thomp.  &  C.  such  through  disease  or  decay;   persons 

422.  insane,  having    lucid    intervals;    mono- 

■■^  No    such    circumstance,    by    itself,  maniacs,  or  those  diseased  upon  one  or 

would  suffice.     Gleespin,  Matter  of,  26  more  subjects  and  otherwise  sound.   One 

N.  J.  Eq.  523.    The  decisions  upon  con-  difficult  subject  discussed  in  connection 

tests  because  of  fraud,  undue  influence,  with    testamentary    capacity   is    senile 

or  mistake  are  very  numerous.  dementia,  or  that  decay  which  sets  in 

For  the  general  discussion  of   ques-  after  one's  full  maturity.    Schoul.  Wills, 

tions  pertaining  to  testamentary  capac-  Part  II.;    I   Jarm.  Wills,  4th  Eng.  ed. 

ity,  —  a    topic    which  a  work    like    the  1 31-144.      Drunkenness,    so    far    as    it 

present  cannot  properly  enlarge  upon, —  disorders    one's    faculties    and    perverts 

general  treatises  upon  Wills,  such  as  the  his   judgment  as  to  what  he   is    doing, 

extensive  English  work  of  Mr.  Jarman,  defeats  his  will;    but  not  habitual  intem- 

should  be  consulted.    Since  the  first  edi-  perance  alone,  nor  even  the  actual  stim- 

tion    of  this  work   was   published,  the  ulus  of  liquor  on  the  particular  occasion, 

present   author    has   written    a  volume  Schoul.  Wills,  Part  II.,  c.  7;    Peck  v. 

upon  that  subject.     Schoul.  Wills,  Part  Gary,  27  N.  Y.  9;   Key  v.  Holloway,  7 

II.,  c.  9.     The  cases  are  very  numerous  Baxt.  575.     As  to  the  effect  of  religious 

under  this  head  and  somewhat  conflict-  delusions,  modern  spiritualism  and  the 

ing,  though  the  safer  conclusions  reached  like,  the  rule  is  not  stated  with  precision, 

appear  those  of  the  text.   There  may  be  judges   themselves  having  various  pre- 

107 


§8o 


EXECUTORS    AND    ADMINISTRATORS.  TpART    II. 


though  courts  should  rule  so  cautiously  as  seemingly  to  favor 
an  unjust  will,  made  under  circumstances  of  doubtful  pro- 
priety, a  jury  rarely  sustains  such  a  will ;  and,  after  all,  unless 
the  particular  will  be  established,  the  proponent  loses  his 
cause. 


§  80.  Proof  of  the  "Will ;  Suitable  Testamentary  Condition  as 
Respects  Legal  Capacity.  —  We  may  add,  as  a  further  element 
of  suitable  testamentary  condition,  what  in  a  single  phrase  is 
to  be  styled  "legal  capacity."  The  general  rule  is,  that  all 
persons  are  capable  of  disposing  by  will ;  yet  there  are  various 
classes  of  persons  excepted  by  the  law,  not  only  in  this  re- 
spect, but  in  other  instances,  involving  the  jiis  dispoiiendi. 
Thus,  aliens  have  been  restricted  by  the  common  law,  and 
particularly  in  the  acquisition  and  transmission  of  real  estate  ; 
though  these  restrictions,  which,  as  to  lands,  are  exclusively 
of  State  cognizance,  have  been  removed  in  many  modern 


possessions  on  issues  of  religious  faith 
and  conscience.  Schoul.  Wills,  §  i68. 
The  bearing  of  the  fact  of  suicide  upon 
the  question  of  testamentary  capacity  is 
considered  in  McElwee  v.  Ferguson,  43 
Md.  479;  Schoul.  Wills,  §  120.  Mental 
unsoundness,  years  after  the  execution 
of  a  will,  does  not  alone  rebut  the  usual 
presumption  of  sanity.  Taylor  v.  Cres- 
well,  45  Md.  422. 

It  may  be  observed  generally  that, 
notwithstanding  one's  sickness  or  in- 
firmity, his  testamentary  disposition  may 
be  valid,  if,  at  the  time  of  making  it,  the 
testator  had  sufficient  intelligence  to 
comprehend  the  condition  of  his  prop- 
erty, his  relations  to  those  who  were  or 
might  naturally  be  the  objects  of  his 
bounty,  and  to  understand  the  provis- 
ions of  the  instrument.  Testamentary 
capacity  is  the  normal  condition  of  one 
of  full  age.  Horn  v.  Pullman,  72  N.  Y. 
269;  Gruhbs  V.  McDonald,  91  Penn. 
St.  236;   Schoul.  Wills,  §  68. 

As  to  free  agency,  it  is  recently  ob- 
served that  whatever  destroys  it  and 
constrains  a  person  to  do  what  is  against 
his  will,  and  what  he  would  not  do  if 


left  to  himself,  is  undue  influence, 
whether  the  control  be  exercised  by 
physical  force,  threats,  importunity,  or 
any  other  species  of  mental  or  physical 
coercion.  The  state  of  health  and  men- 
tal condition  of  the  alleged  testator 
must  be  considered.  Undue  influence 
is  not  measured  by  degree  or  extent, 
but  by  its  effect ;  if  it  is  sufficient  to  de- 
stroy free  agency,  it  is  undue  even  if  it 
is  slight.  Haydock  v.  Haydock,  33 
N.  J.  Eq.  494;  Schoul.  Wills,  Part  II., 
c.  lo;  I  Jarm.  Wills,  4th  Eng.  ed.  131- 
144.  On  the  other  hand,  to  avoid  a 
will  on  the  ground  of  undue  influence, 
it  must  be  made  to  appear  that  it  was 
obtained  by  means  of  influence,  amount- 
ing to  moral  coercion,  destroying  free 
agency;  or  by  importunity  which  could 
not  be  resisted,  so  that  the  testator  was 
constrained  to  do  that  which  was  against 
his  actual  will,  but  which  he  was  unable 
to  refuse  or  too  weak  to  resist.  Brick 
V.  Brick,  66  N.  Y.  144,  149.  PVee 
agency  is  presumed  from  capacity,  and 
the  burden  is  on  those  who  deny  it. 
See  passim  Schoul.  Wills,  Part.  II., 
c.  10. 

08 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  8 1 

instances,  and  seldom  extended  to  dispositions  of  personal 
property.^  Infants,  again,  are  wisely  excepted  by  existing 
statutes  both  in  England  and  the  chief  American  States,  not- 
withstanding the  earlier  doctrine,  borrowed  from  the  civilians, 
which  permitted  males  at  fourteen  and  females  at  twelve  to 
dispose  of  personal  property  by  a  last  will.^  Coverture,  on 
the  other  hand,  operated  a  legal  disability  at  the  common  law 
which  our  modern  married  women's  acts  are  fast  superseding.^ 
Idiots  and  imbeciles  are,  of  course,  incapable  ;  *  but  not  the 
deaf,  dumb,  or  blind,  who  make  intelligent  use  of  the  senses 
given  them.^  And  a  long,  but,  happily,  obsolete,  list  of  dis- 
qualified persons  is  stated  in  the  earlier  English  booksj  whose 
disgrace,  in  this  respect,  attended  their  crime  or  low  condition, 
less,  perhaps,  from  any  consideration  of  unfitness  in  the  indi- 
vidual than  for  the  sake  of  enabling  the  crown  to  confiscate 
his  chattels  beyond  a  peradventure.^ 

§  8 1 .  Proof  of  the  "Will ;  Testimony  at  the  Hearing.  —  The 
law  confides  so  greatly  in  those  who  were  placed  round  the 
testator  as  subscribing  witnesses,  as  to  permit  them,  when- 
ever the  testator's  sanity  is  at  issue,  to  give  their  opinions 
upon  that  point ;  besides  stating  fully  all  material  circum- 
stances which  attended  the  execution  of  the  will  in  question. 
But,  if  so  testifying,  they  may  be  inquired  of  as  to  the  grounds 
of  their  opinion  in  cross-examination,  and  other  evidence  may 

1  Co.  Litt.  2  b;    I    Jam.  Wills,  ed.         5  Schoul.  Wills,  §  94. 

1861,  35,  60-64;   Schoul.  Wills,  §§  34-  ^  Swinburne,    pt.  3,  §  7,  enumerates 

36.  among   those   legally  disqualified   from 

2  I  Vict.  c.  26,  §  7;  20  &  21  Vict.  c.  making  a  last  will  and  testament,  slaves, 
77;  4  Kent  Com.  506,  507;  i  Jarm.  villeins,  captives,  prisoners,  traitors, 
Wills,  39;  Schoul.  Wills,  Part  II.,  c.  2.  felons,  heretics,  apostates,  manifest 
A  minor  over  a  certain  age  may  be-  usurers,  incestuous  persons,  libellers, 
queath  personalty  under  some  of  our  suicides,  outlawed  persons,  excommuni- 
local  statutes.  Banks  v.  Sherrod,  52  cated  persons,  etc.  Forfeiture  of  one's 
Ala.  267.  estate,  even  for  treason,  is,  by  the  more 

3  I  Schoul.  Wills,  Part  II.,  c.  3.  enlightened  rule  of  modern  times,  con- 
*  Schoul.  Wills,  Part  II.,  c.  5.  A  per-     fined  to  the  life  of  the  offender.     See  2 

son  under  guardianship  as  non  compos  Kent   Com.    385,    386;    Schoul.   Wills, 

is  presumptively,  but  not  conclusively,  Part    II.,   c.   I ;     Bailey,  Goods    of,    7 

incapable  of  making  a  will.     Hamilton  Jur.  N.  S.  712;   U.  S.  Constitution,  Art. 

V.    Hamilton,    10   R,  I.   53S;    Schoul.  III.,  §  3.     And   see   Wms.   Exrs.  435; 

Wills,  §  8.  and  English  stat.  n  &  34  Vict.  c.  23,  §  I. 

109 


§  8 1  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

be  put  into  the  case  to  support  or  contradict  them.^  Any 
other  person  may  testify  as  to  the  appearance  of  the  tesUtor 
and  as  to  facts  from  which  the  state  of  his  mind  at  the  date 
of  execution  may  be  inferred ;  but  the  mere  opinions  of  all 
such  witnesses,  who  are  not  experts,  are  usually  pronounced 
inadmissible.  Experts  are  to  be  found  at  this  day  who  are 
examined  on  the  special  subject  of  insanity;  but  an  attending 
physician  of  regular  standing  is  commonly  a  good  enough 
expert  to  give  an  opinion  upon  his  patient's  mental  condition, 
and  from  facts  thus  in  proof,  other  experts  may  draw  conclu- 
sions.^ Subscribing  witnesses  may  be  summoned  into  court 
and  examined  viva  voce ;  and  the  usual  rules  of  evidence 
which  guide  the  common-law  courts  will  apply  with  the  reser- 
vations already  stated,  to  their  testimony,  and  the  credit  to 
be  given  it.^ 

A  will  is  not  to  be  defeated  through  the  failure  of  attesting 
witnesses  to  remember  the  circumstances  of  attestation.* 
Due  execution  raises  the  presumption  that  all  was  rightly 
done ;  and  not  only  is  the  proponent  free  to  aid  the  will  by 
other  competent  proof,  but  (as  these  were  not  essentially  his 
own  witnesses)  he  may  rebut  the  adverse  testimony  of  sub- 
scribing witnesses,  and  even  discredit  them.  As  a  general 
rule,  one  who  offers  a  will  must  call  in  all  the  attesting  wit- 
nesses, if  put  to  the  full  proof,  provided  all  are  alive,  within 
reach  of  the  process  of  the  court,  and  still  competent.^     But 

^  2  Greenl.  Ev.  §§  691,  692;   Schoul.  *  Cooper  v.  Bockett,  4  Moore,  P.  C. 

Wills,  §§  196-204;  Wms.  Exrs.  346,  and  419;     Beckett  v.    Howe,    L.    R.    2    P. 

«.  by  Perkins;    Robinson  ?7.  Adams,  62  &   D.    i ;    Wms.   Exrs.    103,    346,  and 

Me.  369;   Clapp  V.  Fullerton,  34  N.  Y.  n.   by    Perkins;   Dewey   v.    Dewey,     i 

190;  Duffield  w.  Morris,  2  Harring.  375;  Met.  349;   Tilden  v.  Tilden,   13  Gray, 

Logan  V.  McGinnis,   12  Penn.  St.  27;  110;   Verdier  v.  Verdier,  8  Rich.   135. 

Dennis  v.  Weeks,  51  Ga.  24.  Testimony  to  the  execution  of  the  will 

2  Poole  V.  Richardson,  3  Mass.  330;  other  than  that  of  the  subscribing  wit- 
Baxter  V.  Abbott,  7  Gray,  71.  See  this  nesses  may  be  adduced.  Reeve  v.  Cros- 
subject  at  length  Schoul.  Wills,  §§  204-  by,  3  Redf.  (N.  Y.)  74.  The  recitals 
213.  of  the   attestation   clause   are  here   of 

8  Wms.  Exrs.  345,  346 ;  Stats.  1 7  «&  assistance.      Rugg  v.   Rugg,  83  N.   Y. 

18  Vict.  c.  47;   and  21  «&  22  Vict.  c.  77.  592. 

Testimony  as  to  facts  shortly  before  and  ^  See  as  to  effect  of  English  statute 
after  the  act  of  execution  may  be  mate-  of  1857  on  this  point,  Wms.  Exrs.  347. 
rial  upon  the  point  of  sanity.  Nash  v.  The  right  to  have  all  the  attesting  wit- 
Hunt,  116  Mass.  237.  nesses  produced  appears  to  exist  for  the 

no 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §  82 

where  the  witness  is  abroad,  or  disabled  from  personal  attend- 
ance, his  deposition  may  be  taken  ;  if  he  has  died  or  become 
insane  since  the  attestation,  his  handwriting  may  be  proved ; 
and  the  utter  impossibility  of  presenting  one's  testimony 
being  shown  to  the  court,  the  proof  may  go  on  without  him.^ 
If  the  legal  execution  of  a  will  be  clearly  established  aliunde^ 
probate  thereof  may  be  allowed  though  all  the  subscribing 
witnesses  were  dead  or  all  should  testify  adversely.'^  The 
testimony  of  subscribing  witnesses  in  short  is  important  but 
neither  indispensable  nor  conclusive.^ 

§  82.  Revocation  or  Alteration  of  Wills  ;  Codicils  ;  New  Wills, 
etc. —  Every  will  being  revocable  during  the  testator's  life- 
time, probate  should  be  granted  of  the  instrument  or  instru- 
ments only  which  constitute  his  last  will.  Accordingly,  in 
case  of  a  contest  over  two  or  more  wills,  issue  joins  first  and 
most  naturally  on  that  which  was  executed  latest.  Any  dis- 
tinct will  propounded  for  probate,  which  appears  to  have  been 
executed  as  the  statute  requires  and  preserved  intact,  is  pre- 
sumed to  express  the  testator's  latest  wishes ;  ^  but  this  pre- 
sumption may  be  rebutted  by  the  production  of  a  later  will,  or 
other  evidence  of  a  contradictory  nature.  Various  methods  of 
implied  revocation  are  known  to  our  law  ;  such,  for  instance, 
as  the  subsequent  marriage  of  a  single  woman,  or  in  case  of 
an  unmarried  man,  his  marriage  and  the  birth  of  a  child." 
From  other  alteration  of  the  testator's  circumstances,  rev- 
benefit  of  all  parties  in  interest,  whether  writing  was  held  sufficient.  Duncan  v. 
favorable  or  adverse  to  the  will.  But  Beard,  2  Nott  &  McC.  400.  The  mark 
the  right  has  its  rational  limits.  See  of  a  deceased  attesting  witness  must  be 
further,  Cheatham  v.  Hatcher,  30  Gratt.  shown  to  be  his.  9  C.  &  P.  59. 
56.  '^  Schoul.  Wills,  §§  177,  178. 

1  Hawes  v.  Humphrey,  9  Pick.  357;  •*  The  law  presumes  the  revocation  of 
Patten  v.  Tallman,  27  Me.  17;  Wms.  a  will  when  it  is  not  produced,  unless 
Exrs.  347,  and  n.  by  Perkins.  its  loss    is   accounted  for.     Mercer    v. 

2  See  Bull.  N.  P.  264;  2  Stra.  1096;  M.nckin,  14  Bush,  434.  As  to  attesta- 
Humphrey's  Estate,  I  Tuck.  Sur.  142 ;  tion  of  a  codicil,  where  will  and  codicil 
Wms.  Exrs.  347;  Abbott  v.  Abbott,  41  were  executed  together,  see  Fowler  v. 
Mich.  540;    Jenkins,  Will  of,  43  Wis.     Stagner,  55  Tex.  393. 

610.  Where  all  the  witnesses  were  ^  Wms.  Exrs.  7th  ed.  187-204.  Vari- 
dead  at  the  time  of  probate,  and  no  ous  statute  changes  have  occurred  in 
proof  of  their  handwriting  could  be  this  connection.  lb.;  and  see  Schoui. 
found,   proof   of   the    testator's   hand-     Wills,  Part  IV.,  c.  i,  more  fully. 

Ill 


§  82  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ocation  by  parol  was  formerly  presumed  ;  ^  but  parol  methods 
are  discouraged  by  the  later  English  and  American  statutes, 
whose  aim  is  to  specify  clearly  what  shall  constitute  the 
legal  revocation  of  an  existing  will,  and  to  insist  that  an 
actual  revocation  shall  be  plainly  evinced.^  "To  prevent  the 
admission,"  says  Chancellor  Kent,  "of  loose  and  uncertain 
testimony,  countervailing  the  operation  of  an  instrument 
made  with  the  formalities  prescribed,  it  is  provided  that  the 
revocation  must  be  by  another  instrument  executed  in  the 
same  manner,  or  else  by  burning,  cancelling,  tearing,  or 
obliterating  the  same  by  the  testator  himself,  or  in  his  pres- 
ence and  by  his  direction.  This  is  the  language  of  the  Eng- 
lish Statute  of  Frauds,  and  of  the  statute  law  of  every  part 
of  the  United  States."  ^ 

We  may  add  that  such  acts  of  revocation  must  be  done 
with  corresponding  intent,  and  that  under  the  English  statute 
I  Vict.  c.  26,  §  20,  and  the  latest  American  legislation,  these 
principles  are  extended  (with  literal  variance,  and  saving,  per- 
haps, the  effect  of  marriage,  as  above  stated),  so  as  to  embrace 
wills  of  real  and  personal  property  in  the  fullest  sense.*  A 
testator  cannot,  therefore,  delegate  the  power  of  revoking  his 
will  for  some  one  to  exercise  upon  surviving  him,^  nor  change 
or  annul  its  terms  by  any  verbal  directions  or  declarations 
subsequent  to  its  execution.^  The  objection  of  revocation  may 
be  to  substitute  another  will  or  to  adopt  intestacy  as  a  con- 
dition preferable  to  testacy ;  one  may  revoke  a  will  by  a 
writing  properly  attested,  which  contains  no  disposition 
whatever.' 

Where  the  former  will  is  not  cancelled  or  destroyed  out- 


^  Wms.  Exrs.  187, 201;   Schoul.  Wills,  As  to   revocation    by  burning,  tearing, 

Part  IV.,  c.  I.  cancelling,  or    obliterating,    see    Vvms. 

2  Scaife  z/.  Thomson,  15  S.  C.  337.  Exrs.  128-158.     This    subject    is   more 

8  4  Kent  Com.  520,  521.  fully   discussed  in    Schoul.    Wills,  Part 

*  Wms.  Exrs.  127  and  Perkins's  note.  IV.,  c.  i. 

There   are  variations   of  expression   in         '  See   Jessel,    M.   R.,  in    Sotheran  v. 

such  statutes,  which  the  practitioner  is  Deniiig,  20  Ch.  D.  99,  104.     A  general 

bound  to  observe  in  the  case  before  him.  clause  in  a  will  revoking  all  former  wills 

*  Stock  well  V.   Ritherdon,    i   Robert,  revokes   a   prior   testamentary  appoint- 
661 ;  White,  Re,  25  N.  J.  Eq.  501.  ment.     lb. 

"*  Boylan   v.    Meeker,  2   Dutch.  274. 

112 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  83 

right  contemporaneously  with  or  prior  to  the  execution  of 
another  —  a  course  of  proceeding  highly  to  be  commended  in 
most  cases  while  the  testator  retains  his  full  mental  vigor  — 
it  becomes  most  convenient  to  make  an  addition  or  supple- 
ment to  such  former  will,  observing  the  prescribed  solemni- 
ties of  testamentary  signing  and  attestation  as  carefully  as 
before.  These  testamentary  supplements  are  known  as 
codicils,  or  "little  wills  "  ;  and  the  term  "will"  in  a  statute 
being  construed  to  include  all  such  instruments,  codicils  re- 
quire proof  and  a  probate  like  any  other  testament.  From  a 
will  and  its  several  codicils,  like  a  statute  with  its  later  amend- 
ments, the  maker's  full  intention  is  to  be  gathered ;  the  latest 
provisions  modifying,  or,  if  need  be,  annulling  the  earlier. 
From  a  codicil  distinct  reference  to  the  original  instrument  is 
desirable,  though  not  indispensable  ;  and  the  effect  of  a  codicil 
which  in  terms  ratifies,  confirms,  and  republishes  a  will,  is  to 
give  the  original  will  the  same  force  as  if  it  had  been  re- 
written, re-executed,  and  republished  at  the  date  of  the  codicil.^ 
A  new,  adequate,  and  complete  will  may  be  held  to  revoke  all 
former  wills  without  express  words  of  revocation  ;  but  a  codicil 
only  revokes  a  former  will,  as  far  as  it  so  expressly  provides 
or  is  inconsistent  in  terms  with  it ;  nor,  apparently,  should  any 
will  be  construed  as  revoking  another  still  extant,  except  so 
far  as  really  conflicting  with  it.'-^  A  codicil  intends  keeping 
the  former  will  extant,  however,  while  a  new  and  complete 
will  does  not. 

§  83.  Rule  of  Escrow  not  applicable  to  Wills. — -The  reasons 
that  apply  to  other  instruments  on  the  doctrine  of  escrow,  do 
not  apply  to  wills,  unless  possibly  in  the  case  of  what  are 
termed  joint  or  mutual  wills.^     A  will  being  the  act  of  the 

1  Miles  V.  Boyden,  3  Pick.  216.  See  so  as  to  express  on  its  face  that  the  tes- 
Schoul.  Wills,  Part  IV.,  c.  2;  Brown  v.  tator  hereby  makes  his  last  will  and 
Clark,  77  N.  Y.  369.  testament,  revoking  all  other   wills   by 

2  Schoul.  Wilis,  §  437,  and  cases  cited;  him  at  any  time  heretofore  made.  And 
Fisher,  In  re,  4  Wis.  254;  Brant  v.  a  mere  codicil  by  way  of  amendment 
Willson,  8  Cow.  56;  Clarke  v.  Ransom,  may  well  express  that  the  testator  thereby 
50  Cal.  595;  Holden  v.  Blaney,  119  ratifies  and  confirms  his  will  (referred  to) 
Mass.  421.     It  is  usual  and  most  con-  in  all  other  respects. 

venient  for  a  new  will  to  be  drawn  up        ^  gee  as  to  joint  wills  in  equity,  and 


§  84  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

testator  alone  and  requiring  the  assent  of  no  other  person, 
deHv'cry  of  the  instrument  to  any  one  is  not  necessary,  but  a 
due  execution  completes  the  testamentary  act.^ 

§  84.  Lost  "Wills  ;  Republication  of  Will ;  Informal  Alterations, 
etc.  —  A  will,  proved  to  have  been  duly  executed,  which  can- 
not be  found  after  the  testator's  death,  is  presumed  to  have 
been  destroyed  by  him  with  the  intention  of  revoking  it.  But 
this  presumption  may  be  rebutted  by  evidence.  Thus  it  may 
be  shown  that  the  will  was  torn  up  or  burned  by  the  testator 
in  some  insane  freak,  or  through  the  coercion  of  another,^  or 
that  it  was  accidentally  or  fraudulently  destroyed,  or  that,  the 
testator  recognizing  it  to  the  last,  the  will  must  have  been 
lost  or  else  wrongfully  suppressed  by  some  one.  Those  inter- 
ested under  such  a  will  do  not  forfeit  their  legal  rights  by  the 
non-production  of  the  instrument  in  question,  provided  its 
contents  and  due  execution  be  shown  by  satisfactory  proof, 
and  the  absence  of  the  will  sufficiently  explained.^  Where 
only  a  part  of  the  contents  of  a  lost  will  can  be  proved,  that 
part  has  been  held  admissible  to  probate ;  *  though  this  seems 
an  undesirable  rule  to  extend  far.  If  another  person  was 
custodian  of  the  will,  and  the  testator  had  not  ready  access 
to  it,  there  appears  no  presumption  that    it  was   destroyed 


wills   upon  consideration  in  general,  I  secondary  proof,  such   as   may  suffice. 

Jarm.  Wills,  4th    Eng.   ed.  31 ;   Schoul.  Schoul.  Wills,  §  402.     Whether    proof 

Wills,  Part  V.  of  a  residuary  bequest  alone  will  suffice, 

^  Sewell  V.  Slinguff,  57  Md.  537.  see  Woodward  v.  Goulstone,  comment- 

2  Rich  V.  Gilkey,  73  Me.  595.  ing  on  i  P.  D.  154;    il  App.  469. 

^  Idley   V.   Bowen,    11    Wend.    227;  *  Sugden   v.  Lord    St.    Leonards,  L. 

Clark   V.  Wright,  3  Pick.  67;   Foster's  R.  i  P.  D.    154;    Steele  v.  Price,   5  B. 

Appeal,    87    Penn.   St.   67;    Mercer  v.  Mon.  58.     But  if  witnesses  differ  mate- 

Mackin,   14  Bush,  434;    i   Redf.  Wills,  rially  as  to  some  of  the  provisions  of  the 

338-350;    Wins.    Exrs.   153,   378,   379;  will,  the  will  cannot  be  proved.     Sheri- 

Harvey,  Goods  of,  i   Hagg.  595;   Burls  dan  v.  Houghton,  6  Abb.    (N.  Y.)   N. 

V.  Burls,  L.  R.  1  P.  &  D.  472;  Voor-  Cas.  234. 

hees  t'.  Voorhees,  39  N.  Y.  463;   Ford  The  suspected  custodian  of  a  missing 

V.  Teagle,  62  Ind.  61 ;   Johnson's  Will,  will  should  be  cited  into    the    Probate 

Matter   of,   40   Conn.    587;    Nelson  v.  Court,  as  shown  supra,  §  54,  and  rea- 

Whitfield,  82  N.  C.  46.     Contents  may  sonable    exertions    made    to    find    the 

be  established  by  testimony  of  witnesses  original  document,  according  to  circum- 

who   have    heard    it    read.     Morris  v.  stances,  before  probate  can  be  granted 

Swaney,   7   Heisk.    591.     Or   by  other  upon  secondary  evidence  of  the  contents. 

114 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  85 

with  the  intent  of  revoking.^  The  evidence  in  all  cases  of  a 
lost  will  should  be  strong,  positive,  and  certain. 

Republication  revives  the  will  to  which  it  refers,  and  its 
effect  is  to  make  the  whole  will  as  of  such  later  date.  A 
codicil  may  thus  republish  an  informally  executed  will,  though 
the  act  must  be  done  with  all  the  statutory  formalities.^  Re- 
publication maybe  either  the  revival  of  an  instrument  already 
revoked  so  as  to  give  it  full  operation,  or  the  re-execution  of  a 
will  with  similar  intent.^ 

Alterations,  erasures,  and  obliterations  found  in  a  will 
should  be  treated  according  to  circumstances.  If  they  pre- 
ceded the  formal  execution,  they  stand  as  the  final  expression 
of  the  testator's  wishes  ;  but  if  made  afterwards,  the  instru- 
ment in  its  altered  shape  must  have  been  duly  attested,  or 
else  the  alteration  will  fail,  and  probate  be  granted  as  of  a 
valid  testament,  according  to  the  originally  attested  expres- 
sion.^ The  effect  of  obliterating  or  cancelling  should  depend 
as  a  rule  upon  the  testator's  intention  ;  but  partial  revocations 
and  changes  informally  made  as  to  an  executed  will,  our  later 
statutes  wholly  discourage  ;  ^  nor  can  there  be  a  valid  can- 
cellation without  the  exercise  of  a  free  will  and  a  sound 
mind.^ 

§  85.  Probate  in  Whole  or  in  Part.  —  It  follows  from  the  pre- 
ceding summary  of  principles  which  writers  on  the  law  of  wills 

^  Schoul.  Wills,  §  402.     A  lost,  sup-  *  Wms.   Exrs.   143-153;   Jackson    v. 

pressed,  or  destroyed  will   may  be   pro-  Holloway,    7     John.    394;    Wheeler  v. 

bated,  no  statute  prohibiting,  or  may  be  Bent,  7  Pick.  61.     As  to  the  presumed 

established  by  a  court  of  equity.    Dower  explanation  of  an  erasure,  see  Bigelowz/. 

V.  Leeds,    28    W.  Va.    113.     The  con-  Gillott,  123  Mass.  102. 

tents  of  such  a  will  may  be  proved  by  '■>  While  wills  of  personalty  might  be 

the   satisfactory   testimony  of   a   single  informally  executed,  and  before  the  new 

person.    Page,  Re,  118  111.  576.    But  the  statute  of  Victoria  came  into  operation 

proof  of  contents  should  be  clear.      66  in    1838,    there    were   various    Knglish 

Cal.  487.  decisions  which  permitted  a  testator  to 

2  I   Redf.  Wills,  376-379,  and  cases  revoke  his  will /ro /«;//(?  by  striking  out 

cited;   Wms.  Exrs.  205  et  seq.  particular  sentences  or  paragr.nphs  with- 

"  lb.     No  particular  words  are  neces-  out  other   formality.     See  Wms.    Exrs. 

sary  to  be  used  in  a  codicil  in  order  to  143.     Modern  legislation  treats  informal 

effect  a  republication  of  the  will  to  which  alterations  with  disfavor.    Schoul.  Wills, 

it  is  annexed.     Corr  v.  Porter,  33  Gratt.  §§  382,  432 ;  supra,  §  82. 

278.  «  Rich  V.  Gilkey,  73  Me.  595. 


§  85  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

treat  at  full  length,  that  probate  of  a  will  may  require  a  nice 
judicial  discrimination.  To  identify  and  record  as  genuine 
the  last  will  and  testament  of  the  deceased  is  the  peculiar 
province  of  the  probate  court ;  and  the  probate  of  a  will,  not 
appealed  from,  or  confirmed  upon  appeal,  settles  all  questions 
as  to  the  formalities  of  its  execution  and  the  capacity  of  the 
testator,  but  not  the  validity  or  invalidity  of  any  particular 
bequest,  nor  any  question  of  construction.^  To  construe  a 
will  duly  probated,  and  define  the  rights  of  parties  in  interest, 
remains  for  other  tribunals  ;  they  must  interpret  the  charter 
by  which  the  estate  should  be  settled  in  case  of  controversy ; 
while  the  probate  court,  by  right  purely  of  probate  or  ecclesi- 
astical functions,  establishes  and  confirms  that  charter.  But 
in  order  to  do  this,  the  probate  tribunal  throws  out  the  false 
or  the  superseded  will,  or  the  instrument  whose  execution  does 
not  accord  with  positive  statute  requirements  ;  it  determines 
what  writing  or  writings  shall  constitute  the  will.  Moreover, 
in  numerous  instances,  the  English  rule  has  been,  that  a  will 
may  be  in  part  admitted  to  probate  and  in  part  refused  ;  as, 
for  example,  where  some  clause  has  been  fraudulently  in- 
serted in  the  will  without  the  testator's  knowledge  and  free 
consent,  or  in  other  instances  of  illegal  and  improper  alter- 
ation, after  the  will  was  formally  signed  and  attested.^  Where 
the  executor  was  misdescribed  or  imperfectly  described,  to 
ascertain  his  identity  may  be  incidental  to  granting  the  proper 
letters  testamentary.^  The  probate  tribunal  may,  from  the 
best  proof  afforded,  gather  and  set  forth  the  items  of  a  will 
which  has  been  lost  or  accidentally  destroyed,  or  rendered 
illegible,  so  far  as  the  last  wishes  of  the  testator  may  thus  be 


^  Hawes     v.     Humphrey,     9     Pick,  probate.     Honywood,  Goods  of,  L.  R. 

350.  2  P.  &  D.  251;    I  Robert.  423;    Wms. 

2  Wms.    Exrs.    377,    378;     Plume   v.  Exrs.    378.      And    as    to   a   particular 

Beale,   I   P.  Wms.  388;    Allen  v.  Mc-  bequest  procured   by  undue   influence, 

Pherson,  i   H.  L.  Cas.   191;    Hegarty's  see  Fulton  v.  Andrew,  supra;    Harri- 

Appeal,   75  Penn.  St.  514;   Welsh,  In  son's  Appeal,  48  Conn.  202.     A  word 

re,  I  Redf.  Sur.  238;    Fulton  z/.  Andrew,  mistakenly  introduced  into  a  will  may 

L.  R.  7  H.  L.  448.      Semble  that  in  the  be  stricken   out  in  the  probate.     Mor- 

English  probate,  scurrilous  imputations  rell   v.    Morrell,   7  P.  D.  68.     And  see 

in  a  will,  not  affecting  the  disposition  of  Schoul.  Wills,  §§  248-250. 
the   estate,  may  be   excluded  from   the         "  Shuttieworth,  Goods  of,  i  Curt.  911. 

116 


CHAP.  II.j  PROBATE  OF  THE  WILL.  §  85 

established  with  certainty.^  But  jurisdiction  to  separate  the 
false  from  the  true  and  except  special  clauses  from  probate, 
is  to  be  exercised  with  the  utmost  prudence  ;  and  in  England 
the  spiritual  courts  could  not,  even  by  consent,  expunge 
material  passages  which  the  testator  intended  should  make 
part  of  his  will,  nor  substitute  names,  nor  identify  legatees,  nor 
make  the  probate  an  occasion  for  commentary  upon  the  tes- 
tator's text  ;  2  while  in  this  country  the  usual  tenor  of  the 
decisions  is  to  require  probate  to  be  granted  of  a  testamentary 
instrument,  as  it  stood  when  duly  signed  and  attested,  but 
otherwise  without  ruling  out  one  part  of  it  or  another.^ 

A  partial  probate  assumes  that  the  instrument  executed  by 
the  testator  contained  a  false  part  which  was  so  distinct  and 
severable  from  the  true  part,  from  that  which  was  his  will, 
that  the  rejection  of  the  former  does  not  alter  the  construc- 
tion of  the  true  part.  But  where  the  rejection  of  words  or  a 
clause  necessarily  alters  the  sense  of  the  remainder  of  the 
will,  the  question  is  more  difficult  ;  for  even  though  the  court 
is  convinced  (to  use  the  words  of  Lord  Blackburn)  that  the 
words  were  improperly  introduced,  so  that  if  the  instrument 
was  inter  vivos,  they  would  reform  the  instrument  and  order 
one  in  different  words  to  be  executed,  they  cannot  make  the 
dead  man  execute  a  new  instrument.*  There  is  no  difference, 
at  all  events,  between  the  words  which  a  testator  himself  uses 
in  drawing  up  his  will  and  the  words  which  are  bond  fide 
used  by  one  whom  he  trusts  to  draw  it  up  for  him  ;  and  the 
will  in   either  case  must   be   probated   and  construed  as  it 

^  Trevelyan  v.  Trevelyan,  i   Phillim.  Hegarty's   Appeal,    75    Penn.    St.  503. 

149;   Wms.  Exrs.  380-382;   Sugden  v.  But  cf.  Welsh,  In  re,  i   Redf.  (N.  Y.) 

Lord  St.  Leonards,  L.  R.  i  P.  D.  154;  238.     And  as  to  probate  of  a  lost  will, 

Rhodes  v.  Vinson,  9  Gill,  169.  of  which  some  parts  cannot  be  proved, 

2  Notes  of  Cas.  278;  Wms.  Exrs.  378,  see  Steele  v.  Price,  5  B.  Mon.  58.  Pro- 
379;   Curtis  V.  Curtis,  3  Add.  33.  bate  of  a  lost  will  should  be  granted  as 

3  If  a  will  may  take  effect  in  any  part,  it  existed  in  its  integral  state  if  this  can 
it  may  be  admitted  to  probate  although  be  ascertained.  Scruby  v.  Fordhani,  I 
indefinite  in  other   parts.      George   v.  Add.  74. 

George,   47  N.  H.  27.      Probate  of  a  *  See  Rhodes   v.   Rhodes  (1882),  7 

will  which  contains  illegal  and  void  be-  App.  Cas.   192,   198.     Quaere  whether 

quests  may  be  general,  and  without  re-  there  is  in  such  a  case  a  valid  will  within 

servation  of  such  parts.     Bent's  Appeal,  the  meaning  of  the  statute.     lb. 
35   Conn.   523 ;     s.  C.  38    Conn.   26; 

"7 


§  Sy  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

reads.^  And  while  words  or  a  clause  introduced  into  a  will 
fraudulently,  or  simply  without  the  testator's  knowledge  or 
authority,  may  be  stricken  out,  the  probate  admitting  of  such 
a  severance  without  doing  violence  to  the  rest  of  the  will, 
partial  changes  cannot  be  made  in  the  probate  where  the  tes- 
tator knew  and  virtually  adopted  the  words  or  clause.*'^  In 
general,  a  full  probate  does  not  insure  against  a  partial  failure 
in  effect. 

§  86.  Probate  in  Fac-Simile,  or  by  Translation.  —  According 
to  English  practice  under  the  statute  i  Vict.  c.  26,  if  a  will 
presented  for  probate  contains  upon,  its  face  an  unattested 
alteration  or  obliteration,  the  change  must  be  accounted  for ; 
and  if,  upon  full  proof,  the  will  appears  to  have  been  executed 
before  the  alteration  was  made,  probate  may  be  engrossed  as 
if  the  change  had  not  occurred,  unless  it  appears  likely  that 
the  construction  of  the  will  might  be  affected  by  the  appear- 
ance of  the  paper,  in  which  case  a  probate  in  fac-sitnile  is 
decreed.^ 

Where  a  will  is  written  in  a  foreign  language,  probate  may 
be  granted  with  an  accompanying  translation.* 

§  87-  Probate  of  Two  or  More  Testamentary  Papers ;  Grant 
to  Executors.  —  Probate  is  not  necessarily  confined  to  a  single 
instrument ;  but  several  papers  may  be  found  to  constitute 
altogether  the  last  will  of  the  deceased,  and  be  entitled 
to  probate  accordingly ;  ^  and  letters  testamentary  may  be 
granted  to  all  the  executors  named  in  the  several  papers.^ 

Probate  granted  once  at  the  domicile  inures  to  the  benefit 
of  all  who  may  be  appointed  within  the  domestic  jurisdiction 

^  Rhodes  v.  Rhodes,  7  App.  Cas.  192.     courts.  See  L'Fit  v-  L'Batt,  I   P.  Wms. 

2  See    Harter  v.  Harter,  L.  R.  3   P.     526. 
&  M.  II,  22;   Schoul.  Wills,  §  249.  ^  Wms.  Exrs.   107,  and  note  by  Per- 

8  Gann  v.  Gregory,  3  De  G.  M.  &  G.  kins;  Harley  v.  Bagshaw,  2Phillim.  48; 
777;    Wms.  Exrs.  331,  332.  Tonnele  v.  Hall,  4  Comst.  140;    Phelps 

*  Wms.  Exrs.  386.     In  such   case  it     v.  Robbins,  40  Conn.  250. 
seems  proper  that  original  and  transla-         ^  Morgan,  Goods  of,  L.  R.  i  P.  &  D. 
tion  should  pass    to  probate  together;      323.     Cf.,   however,  as    to   the  probate 
the  original  serving  as  the  test,  should     where  difierent  executors  were  appointed 
questions  of  interpretation  arise  in  other     for  different  countries,  Astor,  Goods  of, 

I  P.  D.  150. 
118 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  89 

to  execute  the  will  and  administer  the  estate.^  And  though 
different  executors  be  designated  by  the  will  to  serve,  with 
distinct  powers,  or  for  different  periods  of  time,  but  one 
proving  of  the  will  is  requisite.^ 

§  88.  Decree  of  Probate  entered ;  Public  Custody  of  the  "Will. 
—  The  general  form  of  decree  recites  the  admission  of  the 
will  to  probate,  with  perhaps  the  citation  of  kindred  and  pro- 
cedure under  the  proponent's  petition  ;  it  embraces  usually 
the  appointment,  besides,  of  the  executor  or  an  administrator 
with  the  will  annexed.  The  will  having  been  proved,  the 
original  is  deposited  in  the  archives  of  the  registry,  and  a 
copy  entered  upon  the  records ;  an  attested  copy  being  also 
delivered  to  the  duly  qualified  executor  or  administrator  with 
his  letters,  as  constituting  the  full  credentials- of  his  official 
authority.^  Where  the  original  probate  was  lost,  the  spiritual 
court  granted  no  second  probate,  but  furnished  an  exempli- 
fication from  the  records  ;*  and  in  American  practice,  at  this 
day,  certificates  under  seal  are  regularly  furnished  by  the 
registrar  of  probate  as  the  convenience  of  individuals  may 
require.^ 

§  89.  Nuncupative  Wills.  —  It  remains  to  speak  of  nuncu- 
pative wills,  or  those  which  consist  in  a  verbal  disposition  by 
the  testator  in  presence  of  witnesses.  In  early  times  such 
wills  were  as  to  personal  estate  quite  efficacious ;  but  under 
the  Statute  of  Frauds  and  the  Wills  Acts  of  later  date,  the 
privilege  has  become  restricted  almost  exclusively  to  soldiers 
in  actual  military  service  and  mariners  at  sea.  The  unwritten 
wills  of  soldiers  and  sailors,  however,  have  long  been  distin- 

1  Watkins  v.  Brent,  7  Sim.  512;  37  N.  J.  L.  312.  Death  of  a  person 
Wms.  Exrs.  382.  presumptively  established  by  production 

2  Wms.  Exrs.  382;  l  Freem.  313;  of  the  probate,  etc.  Carroll  z/.  Carroll, 
Bac.  Abr.  Exrs.  C.  4.  6    Thonip.    &   C.    294.     Where   letters 

8  See  Wms.  Exrs.  385,  386,  as  to  the  testamentary  were  issued  and  a  record 
English  practice.  made  of  the  executor's  appointment,  the 
*  Wms.  Exrs.  386;    i  Stra.  412.  appointment    is    not     vitiated    by    the 
^  As   to    transcript    of  the    record  of  clerk's  failure  to  record  the  letters  testa- 
probate  of  a  will  devising  land  and  its  mentary.   Wright  v.  Mongle,  10  Lea,  38. 
effect  in  ejectment,  see  Allaire  v.  Allaire, 

119 


§  89  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

guished  from  wills  technically  nuncupative  ;  which  last,  so 
far  as  the  legislation  of  any  State  may  still  permit  of  their 
operation,  cannot  be  held  good,  under  the  Statute  of  Frauds, 
except  for  a  specified  small  amount,  nor  unless  made,  more- 
over, in  presence  of  a  sufficient  number  of  oral  witnesses,  and 
usually  at  home,  and  moreover,  being  soon  after  put  in  writ- 
ing.^ But  the  Statute  of  Frauds  expressly  excepted  the  wills 
of  soldiers  in  actual  service  and  mariners  at  sea  from  these 
formalities  ;  and  hence  to  such  wills  the  common  law  applies 
as  it  stood  before  this  enactment,  allowing  great  indulgence 
where  men  exposed  to  sudden  death  so  far  from  home  chose 
to  make  final  disposition  of  their  personal  property,  whether 
the  last  wishes  were  expressed  by  some  writing  informally 
executed  or  by  word  of  mouth. ^  All  nuncupative  wills  are 
established  in  probate  by  convenient  proof  of  the  testator's 
expressed  wishes  under  appropriate  circumstances,  and  while 
in  testamentary  condition,  strict  proof  being  required.^ 

^  Stat.  29  Car.  II.  c.  3,  §§  19-23;   2  acts   are  found,  as   in  New  York   and 

Bl.  Com.  501.     I  Vict.  c.  26,  §  11,  cuts  Massachusetts,  similar  to   i  Vict.  c.  26. 

off  the  general  right  of  disposing,  even  But   in   some  States  nuncupative  wills 

under  restraints,  by  a  nuncupative  will,  appear   still    to   be  allowed,  subject  of 

2  As  to  nuncupative  wills,  see  at  length  course  to  statute  restrictions  borrowed 

Schoul.  Wills,  Part  III.,  c.  4,  and  cases  from  Stat.  29,  Car.  II.     Schoul.  Wills, 

cited;  Wms.  Exrs.  116-123,  394;  Broach  Part  III.,  c.  4. 

f .  Sing,  57  Miss.  115;  Donaldson,  Goods  The  ground  in  general,  of  admitting 

of,  2  Curt.  386;    39  Vt.  Ill;   Gould  z-.  nuncupative  wills  to  stand,  appears  to 

Safford,  49  Vt.  498;   Morgan  v.  Stevens,  be  that  the  deceased  had  not  time  nor 

78  111.  287;    Leathers  v.  Gieenacre,  53  fair  opportunity  to   reduce   his  will  to 

Me.  561 ;   King  v.  Vairin,  28  La.  Ann.  writing  before  he  died. 

452;   Hubbard  z/.  Hubbard,  4  Seld.  196.  ^i    Redf.    Wills,    184-201;    Schoul. 

The  provisions  of  the  English  Statute  Wills,    §    378;     Wms.    Exrs.    1 16-123. 

of  Frauds  have  been  generally  re-enacted  And  so  as  to  "  oral  wills,"  Mulligan  v. 

in  American  States;  and  so,  too,  later  Leonard,  46  Iowa,  692. 

120 


CHAP.    III.]       APPOINTMENT   OF   ADMINISTRATORS.  §  QO 


CHAPTER    III. 

APPOINTMENT    OF    ORIGINAL    AND     GENERAL    ADMINISTRATORS. 

§  90.  Original  and  General  Administration  granted  ■wrherever 
there   is   no   Executor,   etc. ;    Origin   of  this   Jurisdiction.  —  The 

grant  of  original  and  general  administration  by  a  probate 
court  corresponds  to  that  of  letters  testamentary  issued  to  an 
executor ;  its  application  being,  however,  in  cases  where  a 
deceased  person  whose  estate  should  be  settled  either  died 
wholly  intestate  or  left  a  will  of  which,  for  some  reason,  no 
one  can  be  a  qualified  executor  within  the  jurisdiction.  Ac- 
cording to  the  various  cases  which  may  arise,  there  are 
various  special  kinds  of  administration,  besides  what  may  be 
termed  "  general  administration." 

Anciently,  as  we  have  seen,  it  was  regarded  in  England  as 
a  prerogative  of  the  crown  to  seize  upon  the  goods  of  one 
who  had  died  intestate,  and  dispose  of  them  for  the  benefit  of 
his  creditors  and  family ;  but  the  prelates,  being  afterwards 
intrusted  with  these  functions,  appropriated  a  large  part  of 
such  estates  upon  the  pretence  of  pious  uses,  until  Parliament 
interposed  and  required  them  thenceforth  to  depute  adminis- 
tration to  "  the  next  and  most  lawful  friends  of  the  dead 
person  intestate,"  who  should  be  held  accountable  to  the 
ordinaries,  and  in  common-law  courts  in  the  same  manner  as 
executors.^  Hence  originated  the  office  of  administrator  in 
the  modern  sense  of  our  law ;  and  estates  testate  and  intes- 
tate becoming  thus  assimilated,  ecclesiastical  courts  were 
taught  to  confine  their  jurisdiction  to  issuing  the  credentials 
of  title  and  authority  in  either  case  under  fixed  and  uniform 
rules,  and  to  supervise  without  meddling  in  the  active  man- 
agement of  the  affairs  of  the  dead.  Finally,  in  England,  as 
in  the  several  United  States,  the  whole  authority  as  to  pro- 
bate, and  the  settlement  of  the  estates  of  deceased  persons, 

1  Supra,  §  7;   Wms.  Exrs.  401-404;   31  Edw.  3,  c.  il,  §  i;  2  Bl.  Com.  495. 

121 


I  91  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

departed  from  ecclesiastical  control  and  became  vested  in 
responsible  civil  tribunals,  known  most  commonly  as  courts 
of  probate,  and  exercising  what  is  usually  styled  "probate 
jurisdiction."  ^ 

^91.  Intestacy  Fundamental  to  the  Grant  of  General  Adminis- 
tration ;  Death  and  Domicil  or  Local  Assets.  —  To  the  grant  of 
general  and  original  administration  upon  the  estate  of  a 
deceased  person,  intestacy  is  a  prc-rcquisite  ;  such  allegation 
should  be  made  in  the  petition,  and  the  court  should  have 
reason  to  believe  the  statement  true.^  Letters  of  general 
administration,  granted  during  the  pendency  of  a  contest  re- 
specting the  probate  of  a  will,  or  after  probate,  regardless  of 
the  executor,  are  null  and  void."*^  And  local  statutes  interpose 
reasonable  delay  to  such  grants  of  administration,  in  order  to 
give  full  opportunity  for  the  production  of  a  will,  so  that  the 
estate  may  be  generally  committed,  if  possible,  according  to 
the  last  expressed  wishes  of  the  deceased. 

Death  of  the  intestate  is  of  course  a  fundamental  require- 
ment,* and  the  grant  of  administration  to  any  one  is  primd 
facie,  though  by  no  means  conclusive  evidence,  that  the  death 
has  actually  occurred.^ 

So,  too,  as  in  the  probate  of  a  will,  primary  jurisdiction 
should  be  taken  in  the  county  where  the  deceased  was  domi- 
ciled or  resided  at  the  time  of  his  death.^  But,  inasmuch  as 
public  law  treats  the  gathering  in  of  a  dead  person's  property 
as  a  matter  of  mutual  convenience  to  creditors,  kindred,  and 
the  State  or  Sovereign,  statutes  now  in  force  in  most  civilized 
States  or  countries  expressly  provide  for  administration  upon 
the  estate  of  persons  who  die  resident  abroad,  leaving  prop- 

1  Part  I.;  Wins.  Exis.  401-404;  Eng-  3  Allen,  87;  Devlin  v.  Commonwealth, 
lish  Stat.  20  &  21  Vict.  c.  77  (court  of  loi  Penn.  St.  273;  D'Arusment  z^.  Jones, 
probate  act  of  1857).  4  Lea,  251. 

2  Bulkley  v.  Redmond,  2  Bradf.  Sur.  ^  Monroe  v.  Merchant,  26  Barb.  383; 
281.  Sims  V.  Boynton,  32  Ala.  353;  Peterkin 

2  Slade  V.   Washburn,   3  Ired.   557;  z*.  Inloes,  4  Md.  175;   Moore  v.  Smith, 

Ryno  V.  Ryno,  27  N.  J.  Eq.  522;    Lan-  11  Rich.  569. 

ders  V.  Stone,  45  Ind.  404;   Watson  v.  ^  This,  if  the  decedent's  domicile  be 

Glover,  77  Ala.  323.    But  see /o^/,  §  135,  otherwise    uncertain,    is    generally    as- 

as  to  letters  of  special  administration.  sumed  as  in  the  State  or  county  where 

■*  Jochumsen  v.  Suffolk  Savings  Bank,  he  died.    Leake  v.  Gilchrist,  2  Dev.  73. 

122 


CHAP.    III.]       APPOINTMENT    OF    ADMINISTRATORS.  §  92 

erty  to  be  administered  within  the  domestic  jurisdiction.  In 
such  a  case,  the  grant  having  no  extra-territorial  force,  and 
the  State  showing  solicitude  for  the  rights  of  foreign  parties 
in  interest,  if  there  be  such,  the  existence  of  bona  tiotabilia 
or  local  assets  is  taken,  nevertheless,  to  confer  the  jurisdic- 
tion, regardless  of  domicile.^  Hence  original  general  admin- 
istration may  be  granted  upon  either  of  two  distinct  grounds  : 
(i)  last  domicile  or  residence ;  or  (2)  in  case  of  non-residence, 
assets  within  the  local  jurisdiction. 

§  92.  Presumption  favors  Jurisdiction  where  the  Grant  is  con- 
ferred ;  but  the  Fundamental  Facts  must  exist.  —  In  general,  the 
county  court  of  probate  will  be  presumed  to  have  exercised 
its  jurisdiction  lawfully  and  upon  satisfactory  evidence  of  the 
essential  facts.  And  this  jurisdiction  is  not  usually  to  be 
attacked  in  collateral  proceedings,  but  the  order  granting 
administration  must  be  reversed  on  appeal,  or  the  letters 
themselves  revoked  or  vacated.^  But,  if  the  person  upon 
whose  estate  letters  were  issued  proves  not  to  have  died  in 
fact,  the  grant  is  without  jurisdiction.^  Nor  can  a  county 
court  rightfully  grant  administration,  unless  either  the  de- 

'^'?i^t  post,  §§   116,  117,  as  to  public  62   111.    146;    McFeeley  v.  Scott,   128 

administrators;  supra,  §  24;  Wilkins  v.  Mass.  16.     This   subject  will  be   more 

Ellett,  108  U.  S.  256;   Little  v.  Sinnett,  fully  considered /oj/. 
7  Iowa,  324.    Generally,  personal  estate         ^  Jochumsen  v.  Suffolk  Savings  Bank, 

is  requisite   for   conferring   such  juris-  3  Allen,  87;   Moore  z/.  Smith,  11   Rich, 

diction;   or  estate,  at  least,  which  in  a  569;   Hooper  v.  Stewart,  25  Ala.  408; 

due  course  of  administration  would  be  D'Arusment  v.  Jones,  4  Lea,  251.     The 

converted   into    personalty.     Crosby  v.  person  whose  estate  was  committed  to 

Leavitt,  4  Allen,  410;  Grimes  z'.  Talbert,  administration  may  claim,  if  alive,  that 

14  Md.  169;  Thumb  z/.  Gresham,  2  Met.  his   property   was    taken    without   due 

(Ky.)  306;  Jeffersonville  R.  v.  Swayne,  process   of    law.      Labin   v.    Emigrant 

26  Md.  474;   Boughton  v.  Bradley,  34  Bank,    18    Blatchf.    I ;    Burns   v.   Van 

Ala.  694;   supra,  §  28.     Land  may  be  Loam,  29  La.  Ann.  560.     Sentence  of  a 

regarded   as  "  assets  "  under   a   statute  person  to  imprisonment  for  life  does  not 

conferring  local  jurisdiction.    Bishop  v.  justify  the  grant  of  administration  upon 

Lalonette,    67    Ala.    197;    Temples   v.  his   estate    as   of    one    "civilly   dead." 

Cain,  60  Miss.  478 ;   Lees  v.  Wetmore,  Frazer  v.  Fulcher,  1 7  Ohio,  260.    Even 

58  Iowa,  170.     But  as  to  statute  claim  if  the  person  in  fact   alive,  had    been 

for  damages  solely  for  benefit  of  widow  absent    and   not   heard   of    for    fifteen 

and  next  of  kin,  see    Perry  v.  St.  Jo-  years,    the    grant    of    letters    is    void, 

seph  R.,  29  Kan.  420.  Devlin    v.    Commonwealth,  loi    Pena 

2  Roderigas   v.    East    River   Savings  St.  273. 
Inst.,  63  N.  Y.  460;    Hobson  v.  Ewan, 

123 


§  94  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ceased  was  domiciled  (or  resident)  therein,  at  the  time  of  his 
decease,  or,  if  a  non-resident,  has  left  suitable  property  in 
the  county  to  be  administered  upon.^ 

S  93.  Value  or  Kind  of  Estate,  whether  Fundamental.  — 
Under  some  American  statutes  a  limitation  of  value  is  set  to 
the  o-rant  of  original  administration,  so  that  the  court  cannot 
grant  letters,  unless  there  appears  to  be  estate  of  the  de- 
ceased amounting,  at  all  events,  to  a  specified  sum,  as  for 
instance  twenty  dollars,  or  unpaid  debts  of  that  value.^  But 
apart  from  express  acts  of  this  tenor,  no  such  particular 
amount  appears  requisite ;  and  in  Massachusetts,  legislation 
restrains  only  the  grant  of  administration  de  bonis  non  in  this 
manner.^  Where  there  are  debts  due  from  the  estate,  and  no 
personal  property  but  only  real  estate  left  by  the  deceased, 
there  is  usually  a  probate  jurisdiction,  provided  the  real 
estate  can  be  made  to  respond  for  such  debts>  In  general, 
the  existence  of  assets  within  the  State  or  country  is  essential 
only  when  the  jurisdiction  concerns  the  estate  of  a  non-res- 
ident deceased  person,  the  situation  of  estate  being  here  the 
test,  but  in  principal  grants  simply  the  last  residence  or  dom- 
icile of  the  deceased.^ 

§  94.  Time  within  which  Original  Administration  must  be 
applied  for.  —  Statutes  are  found  which  expressly  limit  the 
time  within  which  original  administration  must  be  applied 
for.  Thus,  in  Massachusetts,  such  administration  cannot 
(with  a  certain  reservation)  be  granted  after  twenty  years 
from  the  death  of  the  person  whose  estate  is  concerned ;  ^ 

1  As  to  bringing  property  into  the  ^  Harlan,  Estate  of,  24  Cal.  182; 
jurisdiction,  see  supra,  §  26.  And  see  Watson  v.  Collins,  37  Ala.  587;  §  24, 
Paul  V.  Willis  (Tex.)  7  S.  W.  357.  supra. 

2  Bean  v.  Bumpus,  22  Me.  549.  ^  Mass.   Gen.    Stats,    c.   94,    §§    3,  4. 
8  Pinney    v.    McGregory,    102   Mass.    There   is   the    express   reservation  that 

89, /<?r  Gray,  J. ;    Jochumsen  z^.  Willard,  when  property  accrues  to  the  estate  or 

3   Allen,    87.     And    see    as  to   estates  first  comes  to  the  knowledge  of  a  person 

worth  less  than  ^300,    Ind.  statute  re-  interested   after  twenty  years,  adminis- 

ferred  to  in  Pace  v.  Oppenheim,  12  Ind.  tration  may  he  applied  for,  as  to  such 

533.  property,   within    five    years.     lb.     See 

*  Little  V.  Sinnett,  7  Iowa,  324;  Mur-  Parsons  v.  Spaulding,  130  Mass.  83. 
phy  V.  Creighton,  45  Iowa,  1 79. 

124 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §  95 

though  no  such  limits  are  set  to  the  probate  of  a  will.^  Eng- 
lish practice  requires  any  delay  longer  than  three  years  in 
applying  for  letters  to  be  satisfactorily  explained,  whether 
the  application  be  for  letters  testamentary  or  of  administra- 
tion.^ 

§  95.  No  Original  and  General  Administration  granted  w^hile 
Other  Letters  are  in  Full  Force,  etc. ;  Double  Jurisdiction.  — 
There  can  be,  of  course,  no  grant  of  original  and  general 
administration,  while  other  letters  granted  and  confirmed  as 
of  a  testate  estate  or  to  an  original  administrator  remain  in 
full  force  within  the  same  general  jurisdiction.^  And  hence 
the  rule,  convenient  where  local  assets  may  confer  double 
jurisdiction,  that  when  a  case  is  within  the  jurisdiction  of  the 
probate  court  in  two  or  more  counties,  the  court  which  first 
takes  cognizance  thereof  by  the  commencement  of  proceed- 
ings shall  retain  the  same,  and  the  competent  administration 
first  granted  shall  extend  to  all  the  estate  of  the  deceased 
in  the  State,  so  as  to  exclude  the  jurisdiction  of  every  other 
country.* 

Real  estate,  to  be  appropriated  to  the  payment  of  a  debt  of 
the  decedent,  may  perhaps  require  a  local  appointment  of 
administrator  under  the  rule  of  situs  ;^  but,  notwithstanding 
such  appointment,  an  administrator,  appointed  in  the  local 
jurisdiction  where  the  decedent  resided,  becomes  the  prin« 

1  Supra,  §  56;  Shumway  v.  Hoi-  In  Pennsylvania,  letters  should  not  be 
brook,  I  Pick.  114.  issued  after  twenty  years,  except  under 

2  Wms.  Exrs.  7th  ed.  452,  453;  3  statute  qualitications.  But  as  to  the 
Hagg.  565.  And  see  Townsend  v.  effect  of  so  issuing,  see  Foster  v.  Com- 
Townsend,  4  Coldw.  70,  which  makes  monwealth,  35  Penn.  St.  148.  Seven 
exceptions  after  twenty  years  in  favor  of  years  is  the  Connecticut  limitation 
those  who  were  infants  or  married  in  intestate  estates  only.  49  Conn, 
women  when  the  death  occurred.     Un-  411. 

der    the    Texas    act    of    1870  no  such  A  reasonable  time  to  apply  for  letters 
administration  can  be  granted  after  four  is  in  general  permitted.     Todhunter  v. 
years  have  elapsed  from  the  death  of  the  Stewart,  39  Ohio  St.  181. 
intestate.     Lloyd  ta  Mason,  38  Tex.  212.  ^Landers    v.    Stone,  45    Ind.    404; 
But  in  North  Carolina  an  administrator  Slade  v.  Washburn,  3  Ired.  L.  557. 
may  be  appointed  at  least  ten  years  after  *  Mass.    Gen.    Stats,    c.    117;     Smith 
the    intestate's    death,    notwithstanding  Prob.  Pract.  (Mass.)  6. 
the  next  of  kin  possessed  the  property  ^  See  post  as  to  administrator's  deal- 
meantime.     Whit  V.   Ray,  4   Ired.   14.  ings  witli  real  estate. 

I2S 


§  97  EXECUTORS    AND    ADMINISTRATORS.  [PART    II, 

cipal  and  primary  administrator,  and  entitled  as  such  to  the 
personal  assets.^ 

§  96.  Judicial  Inquiry  into  the  Facts  Essential  to  the  Grant  of 
Administration.  —  Letters  of  administration  are  issued  by  the 
court  in  many  States,  upon  the  mere  allegations  of  the  peti- 
tioner, aided  by  the  public  nature  of  the  proceedings,  and  the 
requirement  of  a  bond  for  general  security.  Where  such  is 
the  practice,  the  grant  itself  must  needs  afford  very  little 
proof  of  the  facts  essential  to  jurisdiction,  unless  those  facts 
were  controverted ;  and  the  administrator  should  act  accord- 
ingly, under  a  full  sense  of  the  perilous  responsibilities  with 
which  he  has  been  invested.  But  the  probate  judge  in  each 
case  has  sound  discretion  to  investigate  and  determine  as  to 
death  and  other  facts  fundamental  to  the  grant  of  administra- 
tion ;  and  in  some  States  the  judicial  nature  of  the  inquiry  in 
the  probate  court,  and  the  necessity  of  requiring  due  proof, 
appear  to  be  strongly  insisted  upon.^ 

§  97.  Persons  to  •whom  General  Administration  is  granted.  — 
The  appointment  of  administrators,  both  in  England  and  the 
United  States,  is  founded  upon  the  statute  31  Edw.  III.  c.  1 1  ; 
local  legislation  at  the  present  day,  however,  expressly  regu- 
lating the  whole  subject.  The  policy  of  this  statute  in  con- 
nection with  a  later  one,  passed  during  the  reign  of  Henry 
VIII. ,3  both  ante-dating  the  settlement  of  the  American 
colonies,  was  to  depute  administration  to  those  most  directly 
interested  in  the  estate,  in  case  the  deceased  himself  had 
made  no  choice  by  a  will.  "  The  next  and  most  lawful  friends 
of  the  dead  person  intestate,"  was  the  language  of  the  first 
of  these  statutes,  which  took  the  right  of  administering  away 

^  Chamberlin    v.   Wilson,    45    Iowa,  surrogate   jurisdiction,  so  as  to   render 

149;  post,   as   to   ancillary    administra-  the  person  appointed  even  a   de  facto 

tion,  etc.  administrator,  that  the  appointment  was 

2  See  Roderigas  v.  East    River    Sav-  made    upon    the    petitioner's   averment 

ings  Inst.,  63N.  Y.460;  Bulkley  z/.  Red-  that,  to  his  best  knowledge,  inforrnation, 

mond,   2  Bradf.  Sur.   281 ;    Vogel,  Sue-  and  belief,  M.  was  dead,  with  no  other 

cession  of,   16    La.  Ann.   13;   Burns  v.  proof  of  death.     Roderigas  z/.  East  Rivet 

Van  Loan,  29  La.  Ann.  560.     It  is  not  Savings  Inst.,  76  N.  Y.  316. 

enough,  in  New  York  State,  to  give  the  ^  Stat.  21  Henry  VIII.  c.  5,  §  3. 

126 


CHAP.    III.]        APPOINTMENT   OF    ADMINISTRATORS.  §  98 

from  the  clergy.  Stat.  Hen.  VIII.  c.  5.  §  3,  conferred  upon 
the  ordinary  a  right  to  exercise  discretion  as  between  widow 
and  next  of  kin,  and  in  case  various  persons  equal  in  degree 
of  kindred  should  desire  the  administration.^ 

The  fundamental  principle  of  both  English  and  American 
enactments  now  in  force  on  this  subject  is,  that  the  right  to 
administer,  wherever  the  deceased  chose  no  executor,  shall  go 
according  to  the  beneficial  interest  in  the  estate  ;  a  principle 
which  may  yield,  however,  to  other  considerations  of  sound 
policy  and  convenience.  And  the  grant  should  be  according 
to  the  preference  at  the  time,  not  of  the  intestate's  death,  but 
of  the  application. 2 

§  98.  Husband's  Right  to  Administer  upon  the  Estate  of  hi* 
Deceased  Wife.  —  It  was  part  of  the  common  law  which 
divested  the  wife  of  her  personal  property  for  her  husband's 
benefit,  and  merged  her  status  in  his,  that  on  her  death,  leav- 
ing a  husband  surviving,  the  latter  could  rightfully  administer 
her  estate  to  the  exclusion  of  all  kindred.  The  foundation  of 
this  claim  has  been  variously  stated  ;  some  have  thought  it 
derived  from  the  statute  31  Edw.  III.,  he  being  her  "next 
and. most  lawful  friend";  while  others  deduce  it  from  the 
fundamental  law  of  coverture,  with  whose  general  scope  it 
fully  harmonizes.  The  right  is  confirmed,  both  in  England 
and  in  many  parts  of  the  United  States,  by  modern  statutes, 
and  constitutes  an  exception  to  the  usual  rule  of  administra- 
tion upon  the  estate  of  intestates.^  Often,  under  the  theory 
of  coverture,  there  was  no  occasion  for  a  husband  to  admin- 
ister upon  his  deceased  wife's  estate  at  all ;  her  personalty 
was  his  if  recovered  during  her  life,  and  he  had  to  respond 
personally  for  her  debts  irrespective  of  her  fortune ;  but 
administration  might  be  necessary  in  order  to  sue  or  to  reduce 
her  choses   into  possession  after  her  death.'*      The   modern 

1  Wms.  Exrs.  409,  436.  »  See  Wms.  Exrs.  410;    Schoul.  Hus- 

*  Subject    to    statute    variations,    of  &  Wife,  §    405.     This   right   is  not  an 

course.    Giiffith  z/.  Coleman,  61  Md.  250.  ecclesiastical,    but  a  civil,  right  of  the 

The    grant    of   administration  must  be  husband;    a  right,    however,  to  be  ad- 

to  the  persons  in  the  order  and  under  ministered  in  the  court  of  probate.     Sir 

the  contingencies  provided  by  the  local  J.  Nichollin  Elliott  z/.Gurr, 2  Phillim.  19. 

statute.     51  Mich.  29.  *  Schoul.  Hus.  &  Wife,  §  405.      No 

127 


§98 


EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 


creation  of  a  separate  estate  on  the  wife's  behalf  changes 
this  old  rule  considerably ;  nor  can  the  husband  in  these  days 
be  said  to  administer  so  exclusively  for  his  own  benefit  as 
formerly.^  And  owing  to  modern  facilities  for  separation  and 
divorce,  and  to  the  enlarged  capacity  given  to  the  wife  to  act 
as  2ifcjnc  sole  and  to  acquire  and  dispose  of  property  in  her 
own  right,  the  husband's  privilege  to  administer  upon  his 
wife's  estate  in  preference  to  kindred,  whether  for  his  sole 
benefit  or  in  the  interest  of  others,  appears  a  precarious  one. 

Thus,  in  England,  where  a  married  woman  lives  separate 
from  her  husband  under  a  protection  order  giving  her  the 
capacity  to  deal  and  be  dealt  with  as  a  feme  sole,  administra- 
tion will  be  granted  upon  her  death  to  her  next  of  kin,  exclu- 
sive of  the  husband.^  And  in  the  United  States  may  be 
found  similar  exceptions,  founded  in  considerations  of  the 
husband's  misconduct,  where  others  are  interested  in  the 
estate,  and  the  court  has  a  statute  discretion  in  the  matter  of 
appointment.^ 


administration  was  needful  to  entitle  the 
husband  to  that  which  he  already  pos- 
sessed, by  virtue  of  his  marital  rights, 
or  to  confirm  his  right  to  choses  in  action 
recoverable  without  the  aid  of  the  courts. 
Whitaker  v.  Whitaker,  6  John.  1 1 7; 
Clough  7,'.  Bond,  6  Jur.  50. 

1  Schoul.  Hus.  &  Wife,  §§  408,  409; 
Distribution, /oj/. 

2  Worman,  Goods  of,  I  Sw.  &  Tr. 
513;  Stat.  20  &  21  Vict.  c.  85.  Such 
administration  appears  to  be  limited  to 
the  personal  property  the  wife  may  have 
acquired  since  the  husband's  desertion. 
Wms.  Exrs.  411.  Administration  has 
been  granted  to  a  guardian  elected  by 
her  son,  a  minor,  without  citing  the 
husband.  Stephenson,  Goods  of,  L.  R. 
I  P.  &  D.  285. 

2  See  Coover's  Appeal,  52  Penn.  St. 
427;  Cooper  V.  Maddox,  2  Sneed,  135. 
And  see  post,  as  to  general  incapacity 
for  service  as  administrator,  which  may 
apply  to  a  surviving  husband  as  to  any 
one  else;  and  for  limitation  of  the  time 
within  which  the  right  should  be  as- 
serted, supra,  §  94. 


In  most  parts  of  the  United  States 
the  husband's  exclusive  preference  to 
administer  on  his  wife's  estate  is  recog- 
nized by  statute.  See,  upon  this  point, 
Hubbard  v.  Barcas,  38  Md.  175;  Willis 
V.  Jones,  42  Md.  422 ;  Fairbanks  v. 
Hill,  3  Lea,  732;  Shumway  v.  Cooper, 
16  Barb.  556;  Happiss  v.  Eskridge,  2 
Ired.  Eq.  54;  Clark  v.  Clark,  6  W.  &  S. 
85.  To  deprive  him  of  such  right,  the 
statute  should  be  clear  and  positive  in 
terms.  A  written  agreement  for  separa- 
tion, in  contemplation  of  a  divorce,  with 
covenants  as  to  property,  will  not  be 
presumed  to  have  intended  a  relinquish- 
ment of  the  right  to  administer  in  case 
the  husband  survives,  nor  will  such  con- 
struction be  given,  no  divorce  having 
been  decreed.  Willis  v.  Jones,  42  Md. 
422.  Nor  will  an  ante-nuptial  settle- 
ment for  the  wife's  benefit.  H.nrt  v. 
Soward,  12  B.  Mon.  391.  Nor  the  fact 
of  non-residence.  Weaver  v.  Chace,  5 
R.  I.  356. 

But  in  some  .States  the  husband  is  not 
entitled  to  administer  to  the  exclusion 
of  the  children.    Randall  v.  Shrader,  17 


128 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §  99 

The  wife's  will,  lawfully  made  and  operating,  may  control  a 
surviving  husband's  right  to  administer.^  And,  in  general, 
that  the  husband  may  be  preferred  in  the  trust,  it  is  assumed 
that  he  is  both  competent  and  willing  to  exercise  it. 

Both  in  England  and  the  United  States,  if  a  marriage  were 
voidable  only  and  not  annulled  before  the  wife  died,  the  sur- 
viving husband  was  always  entitled  to  administer ;  ^  but  if 
utterly  void,  or  annulled  during  their  joint  lives,  the  man 
was  no  sur\dving  husband  at  all,  and  could  claim  no  rights  as 
such.^  On  principle,  too,  while  the  husband's  right  to  ad- 
minister would  seem  not  to  be  forfeited  by  a  mere  decree  of 
judicial  separation  or  divorce  from  bed  and  board,*  a  divorce 
absolute,  or  from  the  bonds  of  matrimony,  annihilates  his 
right  with  the  marriage  relation.^ 

§  99.  "Widovr's  Right  to  Administer  upon  the  Estate  of  her 
Deceased  Husband.  —  The  surviving  wife's  right  to  administer 
on  her  husband's  estate  is  not,  under  most  statutes  which 
regulate  the  grant  of  general  administration,  co-extensive  with 
the  right  of  a  surviving  husband.     The  husband  in  the  one 


Ala.  333;   Williamson,  Succession  of,  3  ried  women  in  modern  practice.     The 

La.   Ann.    261 ;    Goodrich  v.  Treat,  3  wife's  choice  of  executor  under  her  will, 

Col.  408.     This  will  become  further  ap-  if  rightfully  made    in   conformity   with 

parent  when  Distribution  is  considered,  rules  of  equity  or  a  modern  statute,  is  to 

post,  and  it  is  perceived  that  the  surviv-  lie  respected.     As  to  the  effect  of  her 

ing  husband  must  share  the  estate  with  will  naming  no  executor,  etc.,  see  post, 

children  or  other  kindred ;  for  the  gen-  administration  with   the   will   annexed, 

eral  principle  is  that  the  right  to  admin-  But  the  wife's  will,  if  limited  in  opera- 

ister  follows  the  interest  in  the  estate,  tion,  calls  for  a  limited  probate,    and 

An    ante-nuptial    settlement,    properly  administration    of  the   rest    should   be 

worded,    may   exclude    the    husband's  granted   to  her  husband.     Wms.  Exrs. 

marital  right  in  this  respect.     Ward  z^.  415;   .Stevens  z/.  Bagwell,  15  Yes.  139. 

Thompson,  6  Gill  &  J.  349;   Fowler  v.  2  Schoul.  Hus.  &  Wife,   §  13;    Wms. 

Kell,    22    Miss.    68;     Schoul.    Hus.   &  Exrs.   411;    Elliott  v.  Gurr,   2  Phillim. 

Wife,  §  363.     The  Massachusetts  stat-  19. 

ute  makes  express  reservation  where,  by  ^  lb.  Browning  v.  Reane,  2  Phillim. 

force  of  a  testamentary  disposition  or  69. 

otherwise,  the  wife  has  made  some  pro-  *  Schoul.    Hus.   &   Wife,    §    563;     2 

vision    which    renders   it    necessary   or  Bish.  Mar.  &  Div.  5th  ed.  §  739;   Clark 

proper  to  appoint  some  one  else  to  ad-  v.  Clark,  6  W.  &  S.  85. 

minister.     Mass.  Pub.  Sts.  c.  130.  ^  Schoul.  IIus.  &  Wife,  §  559;  2  Bish. 

1  Wms.  Exrs.  415.  See  Schoul.  Wills,  Mar.  &  Div.  5th  ed.  §  725;   Altemus's 

Part  II.,  c.  3,   as  to  the  wills   of  mar-  Case,  i  Ashm.  49. 

129 


§  99  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

instance  is  preferred  to  all  others  ;  but  in  the  other  (to  quote 
from  statute  21  Hen.  viii,  c.  5,  §  3),  administration  shall  be 
granted  at  the  court's  discretion,  "  to  the  widow  or  the  next 
of  kin  or  to  both,"  so  that  kindred  and  the  widow  stand  appar- 
ently upon  an  equal  footing,  though  not  unfrequently  parties 
adverse  in  point  of  fact.  Such  is  the  rule  of  England  ;  ^  and 
it  prevails  in  most  parts  of  the  United  States.^  As  we  shall 
see  hereafter,  the  division  of  interests  as  between  widow  and 
kindred  is  its  basis. 

The  widow  must  be  actually  and  bond  fide  such,  and  the 
surviving  wife,  in  order  to  be  entitled  to  administer  upon  the 
estate  of  an  intestate.  The  partner  of  a  void  marriage,  or 
the  survivor  of  a  conjugal  pair,  absolutely  and  finally  divorced 
by  a  competent  tribunal,  can  assert  no  such  claim. ^  Divorce 
from  bed  and  board,  however,  or  a  marriage  simply  voidable, 
works  no  forfeiture  of  the  widow's  statute  right  to  adminis- 
ter;  nor  would  voluntary  separation  of  the  pair;^  yet  the 
discretion  of  the  court,  here  permitted,  as  between  widow  and 
kindred,  may  sufifiice  to  exclude  the  former  whenever  her  past 
misconduct  has  rendered  her  unworthy  of  the  trust,  or  from 
other  cause  her  appointment  is  obviously  unsuitable.^  Mar- 
riage settlements,  too,  may  exclude  the  rights  of  one  surviv- 
ing spouse  as  well  as  the  other.^  And  we  here  consider,  of 
course,  simply  the  estate  of  a  husband  who  dies  intestate, 

1  Wms.  Exrs.  416;   Browning,  Goods  556;   2  Bish.  Mar.  &  Div.  5th  ed.  §  725. 

of,  2  Sw.  &  Tr.  634;   Grundy,  Goods  of,  One  may  leave  a  lawful  widow,  by  re- 

L.  R.  1  P.  &  D.  459;    Widgery  v.  Tep-  marrying  after  divorce.     Ryan  v.  Ryan, 

per,  5  Ch.  D.  516.  2  Phillim.  332.    See  also  Nusz  v.  Grove, 

■^  2  Kent  Com.  410,  411,  and  notes.  27Md.  391;  Odiorne's  Appeal,  54  Penn. 

But  see  next  section.      A  non-resident  St.  175. 

widow  may  be  objectionable  even  though         ^  And   see  as  to  the  husband  under 

a  statute  imposes  no  absolute  limitation  corresponding     circumstances,     §     98. 

upon  her.       O'Brien's  Estate,  63  Iowa,  Administration  refused  to  a  wife  divorced 

622;   Ehlen  v.  Ehlen,  64  Md.  360.  from    bed   and   board   because    of  her 

3  O'Gara  v.  Eisenlohr,  38  N.  Y.  296;  adultery.      Davies,    Goods   of,    2   Curt. 

Schoul.  Hus.&Wife,  §559;2Bish.  Mar.  628;   Wms.  Exrs.  418.     Stat.  20  &  21 

&  Div.  5th  ed.  §  739.   But  where  a  decree  Vict.  c.   77,  §   73,  permits   the   refusal 

of   division  had  been  vacated  and  an-  of   administration   to  the  widow  under 

nulled   after   the    husband's  death,  the  "  special  circumstances."     See  Wells  v. 

widow  was  held  to  be  competent.  Boyd's  Brook,  25  W.  R.  463. 
Appeal,  38  Penn.  St.  246.  «  Schoul.    Hus.    &   Wife,   §    363;    2 

*  See   Schoul.    Hus.    &  Wife,  §§   13,  Cas.  temp.  Lee,  560. 
563;    Wms.   Exrs.  418;    3  Hagg.  217, 

130 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    lOO 

leaving  a  widow  mentally  and  otherwise  competent,  when  we 
speak  of  her  right  to  administer. 

Notwithstanding  the  statute  expression,  English  courts  in 
modern  practice  select  the  widow  to  administer,  in  preference 
to  the  next  of  kin,  unless  good  reason  appears  for  appointing 
differently.^  As  against  next  of  kin  of  remote  degree  or 
creditors,  the  wife  deserves  the  strongest  consideration  ;  and 
even  children  should  respect  a  surviving  parent.  Adminis- 
tration may  doubtless  be  granted  to  both  widow  and  next  of 
kin  ;  but  a  sole  and  harmonious  administration  is  always  pre- 
ferred in  practice  to  a  joint  and  divided  one.^  Where  letters 
are  issued  to  the  widow  and  one  of  the  next  of  kin  jointly,  it 
is  desirable  that  the  other  next  of  kin  should  consent  to  the 
co-appointment.^ 

§  100.    "Wido'w's  Right  to  Administer ;   The  Subject  continued. 

—  The  American  rule  as  to  the  choice  for  administration 
between  widow  and  kindred  must  be  gathered  from  a  variety 
of  acts  applicable  in  different  States.  There  is,  perhaps,  on 
the  whole,  more  disposition  than  in  England  to  construe  the 
statute  literally  ;  balancing  the  preference  of  widow  and  kin- 
dred more  evenly,  and  according  to  the  merits  of  each  case, 
and  granting  administration  to  one  or  the  other  or  jointly  to 
both ;  regarding,  moreover,  that  personal  suitableness  for  the 
trust  which  we  shall  presently  consider  in  its  wider  bearings.* 
A  preference  of  the  widow  to  children  and  other  kindred  is, 
however,  expressly  accorded  by  the  statutes  of  New  York 
and  certain  other  States.^  Where  there  are  no  children  or 
descendants  of  children,  the  widow's  distributive  interest  in 


1  Goddardf.  Goddard,  3  Phillim.  638;  ^  Pendleton  i'.  Pendleton,  6  Sin.  & 
Wms.  Exrs.  417.  But  with  ancillary  M.  448;  Lathrop  v.  Smith,  24  N.  Y. 
administration  it  might  be  otherwise.  417;  McBeth  i'.  Hunt,  2  Strohh.  335; 
Rogerson,  Goods  of,  2  Curt.  656.  Curtis  v.  Williams,  ^^  Ala.  570.     lUit- 

2  Wms.  Exrs.  417;    i  Salk.  36.  eracy  and   poverty  or    old  age   do  not 
8  Newbold,  Goods  of,  L.  R.   i   P.  &  deprive  a  widow  of  her   st.Ttutes,  pre- 

D.  285.  ferred    right    in     Pennsylvania,    if    her 

*  See  McCIellan's  Appeal,  16   Penn.  mind  and  judgment  are  good;    Bower- 

St.     iio;     Smith's     Probate     Practice  sox's  Appeal,  icxj  Penn.  St.  434;    108 

(Mass.)  70.  Penn.  St.  567. 


§   lOI  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

the  surplus  of  the  estate  may  render  her  all  the  more  prefer- 
able to  kindred.^ 

English  courts  have  held  that  the  re-marriage  of  the  widow 
is /^r  j-^  no  valid  objection  to  her  claim  to  administer  ;2  but 
if  children  unite  in  their  choice  as  against  her,  under  such 
circumstances,  it  seems  proper  that  they  should  at  least  have 
a  co-administrator  appointed.^  Both  in  England  and  the 
United  States,  where  the  widow  is  heir  and  distributee,  and 
for  aught  that  is  known  the  only  one,  she  will  be  appointed 
in  preference  to  any  stranger.* 

§  lOI.  Right  of  the  Next  of  Kin  to  Administer;  Consanguinity. 
—  Subject  to  the  possible  claims  of  surviving  husband  or 
widow,  as  already  noticed,  the  right  of  an  intestate's  next 
of  kin  to  administer,  as  well  as  to  take  the  residue  of  the 
personalty  by  way  of  distribution  after  settling  all  claims,  is 
paramount.  These  "next  of  kin,"  or  "  next  and  most  lawful 
friends"  of  the  deceased  (to  use  the  language  of  the  old  stat- 
ute ^)  Lord  Coke  defines  as  "  the  next  of  blood  who  are  not 
attainted  of  treason,  felony,  or  have  any  other  disability."® 

In  general,  no  one  comes  within  the  term  "next  of  kin" 
who  is  not  included  in  the  provisions  of  the  statutes  of  dis- 
tribution hereafter  to  be  detailed.  And,  as  we  have  stated, 
the  fundamental  principle  in  the  award  of  administration  is 
that  the  right  to  administer  upon  the  estate  of  an  intestate 
follows  the  interest  or  right  of  property  therein.'^  Hence 
precedents  under  the  one  head  may  serve  to  establish  a  rule 
under  the  other.  In  most  American  States  the  statutes  of 
distribution  fix  the  order  of  preference  among  kindred  with 
much  precision.^  And  the  general  rule  is,  that  where  there 
is  neither  husband  nor  wife  of  the  intestate  surviving,  admin- 

^  In  Tennessee,  and  in  various  other  Block,  Succession  of,  6  La.  Ann.  8lo. 

States  (see  Distribution, /o^/),  the  widow  ^  31  Edw.  3,  c.  11. 

in  such  a  case  is  entitled  to  the  whole  ''  9  Co.  Rep.  39  b. 

surplus  of  the  personal  estate  after  pay-  ">  3  Atk.  422,  per  Sir  John  Nicholl; 

ment  of  the  debts.     Swan  v.  Swan,  3  Gill,   Goods   of,    i    Hagg.   342;    Wms. 

Head,  163.  Exrs.  7th  Eng.  ed.  419,  and  note  by  Per- 

2  Webb  V.  Needham,  i  Add.  494.  kins. 

^  *^cc  ill.  ^  See  />os/,  Distribution. 

^  Cobb  V.  Newcomb,  19    Pick.  336; 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    102 

istration  shall  be  granted  to  one  or  more  of  the  distributees, 
if  such  be  competent  and  desirous  of  serving.^ 

As  between  husband  and  wife,  neither  can,  by  virtue  of 
the  marriage  relation  alone,  be  regarded  as  next  of  kin  to  the 
other,  for  they  are  not  blood  relatives  ;  ^  and  this  reservation 
extends  to  all  marriage  connections.  Consanguinity  or  kin- 
dred, in  fact,  is  that  relationship  of  persons  which  is  derived 
from  the  same  stock,  or  a  common  ancestor  and  common 
blood  in  the  veins.  Consanguinity  is  either  collateral  or 
lineal.  Collateral  consanguinity  is  the  relationship  of  persons 
descended  from  the  same  common  ancestor,  but  not  one  from 
the  other ;  as  in  the  case  of  nephew,  cousin,  or  even  brother 
and  sister.  These  spring  from  the  same  root  or  stock,  but 
in  different  branches.  Lineal  consanguinity,  on  the  other 
hand,  is  that  relationship  which  exists  where  one  is  descended 
from  the  other,  as  between  son  or  daughter,  and  the  father 
or  grandfather,  and  so  directly  upwards  or  downwards.^  A 
simple  perpendicular  line  on  the  chart,  against  which  names 
are  written,  shows  the  lineal  kindred  of  any  person  deceased 
intestate ;  while  connecting  lines,  centred  at  some  preceding 
name,  exhibit  the  collateral  kindred.* 

§  1 02.  The  same  Subject;  How  to  ascertain  the  Preference 
among  Kindred.  —  In  order  to  ascertain  who  are  next  of  kin 
and  lawfully  preferable  for  administration,  we  reckon  on  such 
a  chart  from  the  deceased  intestate  to  the  nearest  in  degree 
of  blood  surviving  him.  By  the  rule  alike  of  the  civil,  canon, 
and  common  law,  every  generation  in  the  direct  course  of 
relationship  makes  a  degree  for  computing  the  degree  of 
lineal  consanguinity ;  or,  in  other  words,  we  are  to  count 
either  directly  upwards  or  directly  downwards  to  the  nearest 
relative  who  survived  the  deceased.  Father  and  son  are  both 
in  the  first  lineal  degree ;  grandfather  and  grandson  both 
in  the  second.  Collateral  consanguinity,  according  to  the 
preferable  method,  is  computed  by  a  similar  process,  extended 
into  the  diverging  lines  ;  that  is  to  say,  we  count  upwards  to 

1  Hawkins  z^.  Robinson,  3  B.  Men.  141.  ^  2  Bl.  Com.  202. 

*  Watt  V.  Watt,  3  Ves.  244;   2  Kent  *  2  Bl.  Com.  203-205.     See  table  of 

Com.  136,  142;   Whitaker  v.  Whitaker,  consanguinity    at    the   end  of  this  vol- 

6  Johns.  112.  ume. 


§    102  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

the  common  ancestor  of  both  the  deceased  and  the  surviving 
kinsman,  and  then  follow  the  branch  downwards  until  the 
kinsman  is  reached,  reckoning  one  degree  for  each  generation. 
The  civil  law  took,  thus,  the  sum  of  the  degrees  in  both  lines 
to  the  common  ancestor,  so  as  to  point  out  the  actual  degree 
of  kindred  in  all  cases ;  our  English  canon  law,  though  less 
exact,  arrived  at  the  same  general  result.^  Hence,  following 
the  civil  method,  we  pronounce  the  intestate's  brother  in  the 
second  degree,  both  his  uncle  and  nephew  in  the  third  degree, 
and  his  cousin  in  the  fourth.^ 

Other  rules  in  this  connection  deserve  our  consideration, 
(i)  Relatives  of  the  deceased  by  the  father's  side  and  the 
mother's  side  stand  in  equal  degree  of  kinship,^  so  that,  in 
tracing  out  pedigree  beyond  one's  immediate  family,  two  trees 
may  be  required  for  comparison.  (2)  Half-blood  must  be 
reckoned  as,  on  principle  and  save  for  those  feudal  disabilities 
at  the  common  law  which  had  reference  to  the  inheritance  of 
lands,  entitled  equally  with  the  whole  blood  ;  so  that  the 
half-brother  stands  in  higher  degree  than  the  full  uncle.* 
(3)  Primogeniture  gives  no  preference  of  administration 
among  kindred  of  the  same  degree,  as  matter  of  right  ;  and, 
indeed,  in  the  United  States  the  modern  rule  is  to  dispense 
altogether  with  legal  distinctions  in  favor  of  the  first-born  of 
a  family.^  (4)  The  right  to  administer,  as  to  kindred,  will  follow 

1  See  2  Bl.  Com.  202,  207.     By  our  Ves.  Sen.  335;   Wms.  Exrs.  421,  note, 

canon  law,  the    numbering  of  degrees  ■^  See  table  of    consanguinity  at  end 

was   different   where  collateral  consan-  of  volume. 

guinity  was  reckoned;   for  the  rule  was  ^  Wms.   Exrs.  422;     i    P.  Wms.  53. 

to  begin  with  the  common  ancestor  and  Local  statutes  sometimes  discriminate  in 

reckon  downwards;    and  the  degree  the  favor  of  relatives  on  the  father's  side, 

two    persons,    or    the   more   remote    of  Kearney  v.  Turner,  28  Md.  408. 

them,  was  distant  from  the  ancestor,  was  •*  I  Vent.  424.     And  see  2  Bl.  Com. 

taken  to  be  the  degree  of  kindred  sub-  505.     To  this,  however,  are  found  stat- 

sisting   between   them.      For   instance,  ute    exceptions  in  favor  of  the  whole 

two  brothers  were  said  to  be  related  to  blood.     And,  among  those  of  equal  de- 

each  other  in  the  first  degree,  and  an  gree,  whole  blood  kindred  are  usually 

uncle  and  nephew  in  the  second.     lb.,  selected  to  administer  in  preference  to 

Christian's  note.  Chancery  judges  charge  those    of  the    half-blood.      Stratton   v. 

the  canonists  with  reckoning  degrees  of  Linton,  31   L.  J.  P.  M.  &  A.  48;   Wms. 

kindred  so  closely  in  order  to  increase  Exrs.  427. 

their    trade    in    selling      dispensations  ^  Wms.   Exrs.   423;     I    Phillim.    124; 

of  marriage.      Prec.  Ch.    593,  per    Sir  Distribution, /ci// Shomo's  Appeal,  57 

J.     Jekyl ;      Lord     Hardwicke     in     i  Penn.  St.  356. 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    IO3 

the  proximity  of  kindred  ;  and  kindred  of  the  nearest  degree 
accordingly  take  precedence  over  those  more  remote,  as  the 
true  "next  of  kin."  Thus,  if  one  dies  leaving  no  children, 
but  parents,  these  are  of  the  first  degree  by  reckoning  ;  and 
their  rights  are  accordingly  superior  to  those  of  brother  and 
sister,  who  occupy  the  second  degree.^  Indeed,  the  rights  of 
parents  in  such  a  case  are  theoretically  paramount  and  equal. 
But  the  old  doctrines  of  the  common  law  forbade  the  theory 
that  mother  and  father  should  have  equal  title  as  parents  ;  ^ 
and  the  English  statute  i  Jac.  2,  c.  17,  moreover,  which  has 
been  re-enacted  in  numerous  American  States,  retrenches 
the  rights  formerly  accorded  to  a  mother  as  the  only  surviv- 
ing parent,  by  distributing  the  estates  of  intestates  equally 
between  mother,  brothers,  and  sisters,  where  there  is  no  sur- 
viving father.^  Following  the  proximity  of  kindred,  the  grand- 
parent excludes  the  uncle  or  aunt,  being  nearer  in  degree.* 

§  103.  The  same  Subject;  Preferences  among  Kindred  of  the 
same  Degree,  etc. —  It  is  plain  that  one  may  die  leaving  vari- 
ous parties  related  to  him  in  the  same  degree  of  kindred,  but 
in  different  classes,  and  without  any  common  bond  of  affec- 
tion. Further  rules  of  discrimination  have,  therefore,  been 
established,  for  convenience.  A  certain  preference  among 
kindred,  in  fact,  is  regarded,  in  according  rights  of  adminis- 
tration, as  well  as  in  legal  descent  and  distribution  ;  natural 
affection  and  the  natural  instincts  of  family  influencing,  no 
doubt,  such  a  selection.  Thus,  should  one  die,  leaving  a 
child  or  children,  these  among  kindred  are  the  closest  to 
him  ;  and  though  of  the  same  degree  as  his  father  or  mother, 
they  should  be  preferred.^  And  the  same  consideration 
gives  precedence  to  lineal  descendants  in  the  remotest  de- 
gree ;  or,  in  other  words,  the  stock  one  has  founded  takes  the 
priority  of  that  from  which  he  was  derived.^  As  between 
one's  own  brothers  and  sisters  and  his  grandparents,  though 
both  classes  are  of  the  second  degree,  yet  the  ties  are   knit 

1  I  p.  Wms.  51 ;  Wms.  Exrs.  423;  ^2  Bl.  Com.  504;  Withy  v.  Man- 
Brown  V.  Hay,  I  Stew.  &  P.  102.                gles,  4  Beav.  358. 

2  See  next  section.  ^  Evelyn  v.  Evelyn,  3  Atk.  762 ;  s.  & 
8  Wms.  Exrs.  423;   Distribution, /wA     Amb.  191. 

*  lb.;  I  P.  Wms.  45;  I  Ld.  Raym.  686. 


§    I03  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

less  closely  in  the  latter  case  than  in  the  former;  hence,  and 
to  avoid  dispersion  of  the  estate  among  more  remote  branches 
of  the  family,  brothers  and  sisters  are  preferred.^ 

All  these  discriminations  are  fundamental  in  English  and 
American  law.  Others  may  be  traced,  in  the  legislation  of 
certain  States,  which  are  founded  in  reasons  less  forcible,  and 
operate  by  virtue  of  local  laws,  mostly  of  an  experimental 
character.  To  this  latter  class  may  be  referred  the  prefer- 
ence, in  case  both  parents  survive  the  intestate,  which  the 
father  takes  over  the  mother ;  a  preference  so  ingrained  in 
the  common  law,  that,  except  for  the  modern  tendencies  of 
legislation,  we  should  include  it  in  our  preceding  paragraph 
among  fundamental  discriminations.^  For,  when  a  child  dies 
intestate  without  leaving  wife  or  issue,  his  father,  if  there  be 
one  living,  is  still  usually  entitled  to  administer,  as  next  of 
kin,  exclusive  of  all  others  ;  ^  while  a  mother  receives  con- 
sideration only  when  the  widowed  mother,  nor  always  then 
as  against  the  other  children.*  Next,  as  between  Jineal  and 
collateral  kindred,  the  civil  law,  without  respect  of  degree, 
preferred  the  former  in  every  case,  except  that  of  brothers 
and  sisters  ;  while  the  common  law  selects  the  collateral  of 
nearer  degree,  rather  than  the  lineal  of  more  remote;  and 
this,  too,  is  matter  of  statute  definition  in  various  States.^ 
There  are  limits  to  the  right  of  representation  (or  where  the 
descendant  stands  in  place  of  ancestor,  among  those  of  the 
ancestral  degree),  as  we  shall  see  hereafter;  but  whether 
entitled  to  take  the  ancestor's  share  in  the  final  distribution 
or  not,  the  issue  may  well  be  subordinated  in  the  grant  of 
administration.^ 

While  it  is  a  maxim  that  the  persons  entitled  to  participate 
in  distribution  have  also  the  right  to  administer,  it  neverthe- 
less happens  often  that  the  person  designated  by  the  statute 


1  Evelyn    v.    Evelyn,    iupra ;     i    P.         ^  j    p.  Wms.   58;    Wms.   Exrs.  424. 
Wms.  45;   Wms.  Exrs.  424.  But  as  to  lineal  descendants,  see  supra, 

2  Wms.  Exrs.  423;    Blackborough  v.  p.  135. 

Davis,   I   P.  Wms.  51.     And  see  as  to         ^  Administration  is  to  be  granted  to 

Distribution,  post.  the  daughter  in  preference  to  the  son  of 

8  Aleyn,  36;    Wms.  Exrs.  424.  the  eldest  son  of  the  intestate.     Lee  v. 

*  Supra,  §  102.  Sedgwick,  i  Root,  52. 

136 


CHAP.    III.]       APPOINTMENT    OF    ADMINISTRATORS.  §    IO4 

to  administer  in  preference  may  have  disproportioned  rights 
in  the  estate,  or  perhaps  no  beneficial  right  therein  at  all.^ 
But  where  the  statute  does  not  settle  the  right  to  administer, 
the  question,  who  is  entitled  to  the  surplus  of  the  intestate's 
personal  estate,  must  generally  be  the  practical  test.^ 

§  104.  Leading  Considerations  vrhich  affect  the  Choice  among 
Persons  equally  entitled  by  Lavr  to  administer .  Suitableness,  etc. 

—  As  among  the  next  of  kin,  or  person-s  all  of  the  same  class 
in  respect  of  a  legal  right  to  administer,  the  actual  choice  of 
administrator  by  the  court  may  be  guided  by  various  consider- 
ations. Personal  suitableness,  for  instance,  is  a  very  important 
element,  whether  in  determining  the  appointment  as  between 
the  widow  and  next  of  kin  of  an  intestate,  or  where  one  or 
more  next  of  kin  alone  are  concerned.  Favorably  as  our  law 
treats  the  widow's  claim  to  administer,  even  though  the  in- 
testate's next  of  kin  were  his  own  children,^  a  widow  evidently 
unsuitable  may  be  passed  over  in  favor  of  the  next  of  kin ; 
but  if  the  next  of  kin  are  all  unsuitable,  the  widow,  being 
competent,  is  entitled  to  the  sole  administration  ;  while,  if 
both  widow  and  next  of  kin  are  unsuitable,  the  application  of 
all  should  be  refused.*  And  so,  too,  where  only  next  of  kin 
of  a  certain  class  are  concerned  in  the  administration,  if  one 
is  suitable  and  the  others  are  unsuitable,  the  suitable  one  will 
be  taken  ;  if  two  or  more  are  equally  entitled,  equally  suitable, 
and  equally  strenuous  to  be  appointed,  the  court  has  power 
to  appoint  one  or  more  of  them  ;  but  if  all  arc  unsuitable,  the 
appointment  must  be  otherwise  bestowed.  From  among  two 
or  more  persons  equally  akin  to  the  deceased,  the  court  may 
choose  the  most  suitable  at  discretion.^ 

As  to  suitableness,  there  are  numerous  decisions,  just  as 
there  are  various  kinds  and  degrees  of  unsuitableness.  Separ- 
ation of  husband  and  wife,  apart  from  the  question  of  fault, 

^  Lathrop  v.  Smith,  24  N.  Y.  417.  ableness  is  an  element  of  especial  impor- 

2  Sweezey  v.  Willis,  i  Bradf.  Sur.  495.  tance  in  States  which  have  legislated  on 

8  Supra,    §    icx);    McGooch    v.    Mc-  this  point. 
Gooch,  4  Mass.  J48;   Sears  v.  Wilson,         ^  'Sqq  pat,  §  132,  as  to  administration 

5  La.  Ann.  689;   Pendleton  v.  Pendle-  during  minority.     Taylor  v.  Delancey, 

ton,  14  Miss.  448.  2   Cai.   (N.  Y.)    Cas.    143;     Moore   v. 

*  Stearns  v.  Fiske,  18  Pick.  24.    Suit-  Moore,  i  Dev.  (N.  C.)  268. 


g    104  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

does  not,  we  have  seen,  disqualify  one  from  administering  on 
the  estate  of  the  other.  Nor,  as  it  is  held,  does  inability  to 
read  or  write  render  one  an  unsuitable  administrator.^  Neither 
illiteracy  nor  narrow  means  necessarily  makes  one  unsuit- 
able.2  Nor  habits  of  intemperance.^  Nor  old  age.*  Nor 
the  bare  fact  of  intermeddling  with  the  effects  before  appoint- 
ment.^ Nor  that  the  party  in  interest  is  a  nun  or  priest.*^ 
But,  as  between  individuals  of  the  same  class,  moral  fitness 
and  integrity  may  well  be  considered  in  the  selection;'^  also 
efficiency  of  mind  and  body;  also  business  habits  and  ex- 
perience in  the  management  of  estates.^  A  bankrupt  or  an 
insolvent  is  an  unsuitable  person  for  the  trust  of  administra- 
tor, especially  if  embarrassed  habitually.^  One  may  be  con- 
sidered unsuitable  for  the  appointment,  who  holds  already 
some  other  trust,  whose  interests  decidedly  conflict  with  those 
of  the  estate  in  question. ^°  Or  who  is  largely  indebted  to  the 
estate,  especially  if  the  amount  due  has  not  been  ascertained. 
Or  who  was  partner  of  the  deceased  at  the  time  of  his  death.^^ 
Or  who  is  hostile  to  another  of  the  next  of  kin.^  Or 
who  is  otherwise  so  adversely  interested  to  heirs,  creditors, 
or  other  kindred,  as  to  prejudice  the  due  settlement  of  the 
estate,  if  placed  under  his  charge.  ^^     por  the  administrator 

^  Nusz  7'.  Grove,  27  Md.  391;   Alte-  ^  Stephenson  v.  Stephenson,  4  Jones 

mus's  Case,  l  Ashm.  49.  L.  472;    Williams  v.  Wilkins,  2  Phillim. 

2  Emerson  v.  Bowers,  14  N.  Y.  449.  100. 

8  Elmer  v.  Kechele,  i   Redf.  (N.  Y.)  ^  CorHpropst's  Appeal,  33    Penn.  St. 

472.  537;    Bell  v.  Timiswood,  2  Phillim.  22. 

*  3  Demarest,  263.  Cf.  Tilley  v.  Trussler,   26    W.   R.   760. 

^  Bingham  v.  Crenshaw,  34  Ala.  693.  A  steady  industrious  man  is  not  disquali- 

6  Smith  V.  Young,  5  Gill,  197.   "Con-  fied  by  reason  of  owing  a  small  sum  on 

viction  of  infamous  crime  "  is  sometimes  old  debts.     Levan's  Appeal,  112  Penn. 

a  statute  disqualification;  ?.^.,  conviction  St.  297. 

of  an  offence  against  local  law.    O'Brien  ^'^  State  v.  Reinhardt,  31  Mo.  95.    Cf. 

lie,    3  Demarest,    156.      Nor  semble  is  Wright  v.  Wright,  72  Ind.  149. 

legal    dishonesty,    as    in     theft,      etc.,  ^^  Cornell  v.  Gallaher,    16    Cal.    367; 

"improvidence."     lb.     Otherwise  as  to  Brown's  Estate,  II  Phila.  (Pa.)  127. 

gambling.      McMahon   v.    Harrison,    6  12  Drew's  Appeals,  58  N.  H.  317. 

N.    Y.    443;     Emerson    v.    Bowers,    14  ^^  Pickering  v.  Pendexter,  46  N.   H. 

N.  Y.  449.    The  question  as  to  "  improv-  69;     Moody   v.    Moody,    29   Ga.    515; 

idence "  is  whether  it  is  such  as  is  likely  Heron,   Estate   of,   6    Phila.   (Pa.)    87. 

to    endanger    the    safety  of  the  estate.  The   fact  that  one  of  the  kindred  is  a 

5  Dem.  (N.  Y.)  456.  creditor  is  rather  unfavorable  than    fa- 

''  Coope  V.  Lowerre,  i   Barb.  Ch.  45  ;  vorable  to  his  selection.     Webb  v.  Need- 

McMahon  v.  Harrison,  6  N.  Y.  443.  ham,  i  Add.  494. 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    lOO 

should  be  interested  in  settling  the  estate,  not  unfaithfully  or 
partially,  but  faithfully,  and  for  the  welfare  of  all  con- 
cerned.^ 

Unsuitableness  is  not  overcome  by  the  fact  that  the  party 
personally  unsuitable  is  ready  to  give  ample  bonds  with 
sureties  for  the  faithful  performance  of  his  trust  ^  though  this 
is  doubtless  of  great  advantage  to  overcome  a  doubt.  For  it 
is  just  neither  to  parties  in  interest  nor  to  those  offering  to 
become  bondsmen,  that  in  an  office  of  trust  the  chief  reliance 
must  be  placed  upon  the  security,  instead  of  the  principal ; 
nor  can  remedies  for  mismanagement  compensate  for  detri- 
ment suffered  through  the  want  of  good  management.^ 

§  105.  The  same  Subject;  Suitableness  as  between  Males  and 
Females,  the  Elder  and  Younger,  etc.  —  Next,  we  observe,  that 
by  the  old  rule  males  have  no  legal  preference  over  females, 
in  the  grant  of  administration  to  the  next  of  kin,  though  in 
the  succession  of  lands  feudal  law  pronounced  otherwise. 
But  on  practical  considerations  of  suitableness,  where  the 
settlement  of  an  estate  is  involved  and  various  kindred  are  to 
be  protected,  woman  herself  generally  desires  a  man's  man- 
agement ;  and  hence,  aside  from  the  discretionary  choice  of 
a  court,  there  are  American  statutes  which  distinctly  place 
the  male  next  of  kin  before  the  female,  for  receiving  the  ap- 
pointment.^ So  may  it  be  thought  fit  that  the  younger  and  less 
discreet  should  yield  to  the  older  under  some  circumstances.'* 

§  106.  Suitableness  as  concerns  Married  "Woman  ;  Husband's 
Administration  in  Wife's  Right.  —  Local  statutes  are  also  found 


1  The  New  York  statute  declares  that  ^  ggg  Stearns  v.  Fiske,  18  Pick.  27. 

letters  shall  not  he  granted  to  any  person  ^  2  N.  Y.  Rev.  Stat.  74,  §  28;   Cook 

adjudged  to  be  incompetent  to  execute  v.  Carr,   19  Md.  i.     But  other  consiti- 

the   trust   "  by  reason    of  drunkenness,  erations,  such  as  minority  or  non-resi- 

improvidence,   or   want  of   understand-  dence    of   male    relatives,    may   control 

ing."     See  McMahon  v.  Harrison,  6  N.  this  wise  rule.     Wickwire  v.  Chapman, 

Y.  443.     Some  statutes  appear  to  extend  15  Barb.  302. 

the  incompetency  which  may  arise  from  *  Wms.  Exrs.  427;    l  Phillim.  125;    4 

illiteracy  and  ignorance  of  accounts  and  Hagg.  376.     Though  not,  of  course,  in 

business.      Stephenson    v.    Stephenson,  any  such  sense  as  to  set  up  the  rule  of 

4  Jones  L.  472.  primogeniture. 


§   I06  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

to  give  unmarried  women  the  appointment  in  preference  to 
married  women. ^  Legislation  may  debar  the  husband  of  a 
woman  who  is  entitled  to  administer  from  succeeding  by  the 
marriage  to  her  right. ^  But  the  old  and  familiar  rule,  English 
and  American,  is  that,  while  property  held  by  the  wife  in  a 
representative  capacity  at  the  time  of  marriage  cannot  vest 
personally  in  the  husband,  he  acquires,  nevertheless,  the  right 
to  perform  her  trust,  on  the  assumption  that  she  becomes  in- 
capacitated by  marriage  from  performing  it.  In  this  sense  it 
is  said  that  if  the  wife  be  executrix  or  administratrix  at  the 
time  of  her  marriage,  the  husband  may  administer  in  her 
right. ^  Changes  in  this  doctrine  are  introduced  by  modern 
equity,  and  the  married  woman's  acts  ;  thus,  the  wife  may 
be  sole  fiduciary,  in  England  and  some  American  States, 
with  her  husband's  consent,^  or  perhaps  without  it  ;^  and  pro- 
vision is  made  for  the  husband's  joinder  in  his  wife's  official 
bond.6 

If  the  wife  be  executrix  or  administratrix,  and  dies  intestate, 
administration  de  bonis  non  as  to  such  estate  is  proper ;  and 
parties  in  interest  have  the  right  to  be  considered  for  the  new 
appointment,  rather  than  her  surviving  husband.'^  The  same 
effect  is  sometimes  given  by  statute  to  the  marriage  of  a 
single  woman.^ 

^  2  N.  Y.  Rev.  Stat.  74,  §  28;  Owings  Sole  is  permitted  by  some  codes  to  re- 

V.  Bates,  9  Gill,  463.     This  preference  sign  her  trust  on  her  marriage.     Rambo 

applies  where  the  intestate  leaves  two  v.  Wyatt,  32  Ala.  363. 

daughters,  one  of  whom  is  married  and  ^  Administration   granted   to   a    wife 

the    other   is  not.     Smith  v.  Young,  5  living  apart  from  her  husband  under  a 

Gill,  197;     Curser,  Re,  89  N.  Y.  401;  deed  of  separation.     Hardinge,  Goods 

reversing  25  Hun,  579.  of,    2   Curt.   640.     And   see    Maychell, 

2  Richards    v.   Mills,    31    Wis.   450;  Goods  of,  26  W.  R.  439. 

Barber  v.  Bush,  7  Mass.  510.  ^  Airhart   v.   Murphy,   32  Tex.    131 ; 

^  Schoul.  Hus.  &  Wife,  §   163;   Dar-  Cassedy  v.  Jackson,  45  Miss.  397. 

dier  v.  Chapman,  L.  R.  11  Ch.  D.  442;  ^  3  Salk.  21;   Wms.  Exrs.  416.     See 

Woodruffe  v.  Cox,  2    Bradf.  Sur.  153;  Risdon,  Goods  of,  L.  R.  i  P.  &  D.  637. 

Keister  t/.  Howe,  3  Ind.  268;   Ferguson  ^  See  Mass.  Gen.  Stats,  c.   loi,  §   i, 

z/.  Collins,  8  Ark.  241;   Pistole  z^.  Street,  which   specifies,    as  a  proper  case  for 

5  Port.  (.\la.)  64.  granting   administration   de  bonis   non, 

*  Stewart,  In  re,  56  Me.  300;  Binner-  that  of  the  marriage  of  a  single  woman 

man  v.  Weaver,  8  Md.  517;   Wms.  Exrs.  who  is  sole  executrix,  etc.   And  see  next 

450 ;     Schoul.    Hus.  &  Wife,  appendix,  chapter  as   to    administration    de  bonis 

A  woman  appointed  administratrbc  while  non.      A   married    daughter's   right   to 

140 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    IO9 

5  107.  Unsuitableneas  as  to  Insane  Persons  ;  Infanta  ;  Corpor- 
ations, etc.  —  Insane  persons  are  doubtless  unsuitable  for  the 
personal  trust  of  administrator,  and,  indeed,  incompetent  to 
serve. ^  So,  too,  are  infants.'-^  A  corporation  cannot  lawfully 
be  appointed,  unless  the  right  to  administer  has  been  ex- 
pressly conferred  in  its  charter.^  In  general  a  cestui  que  trust, 
if  natural  and  competent,  is  entitled  rather  than  his  trustee.'* 
The  usual  disqualifications  of  an  executor  extend  to  adminis- 
trators ;  and  other  disqualifications  are  sometimes  annexed.^ 

§  108.    Illegitimate   Children   and  their  Right   to   Administer. 

—  As  to  illegitimacy,  the  peculiar  rules  of  distribution,  as 
defined  by  statute,  must  be  applied  for  determining  the 
right  to  administer ;  whether  the  case  be  one  of  an  illegiti- 
mate decedent  or  of  illegitimate  relationship  to  a  decedent.® 

§  109.  Whether  Non-residence  disqualifies. —  Non-residence 
is  an  objection  to  the  appointment  ;'  but  in  practice  not  usu- 
ally a  decisive  one,  especially  as  between  residents  in  differ- 
ent parts  of  the  United  States.  But  it  is  sometimes  said 
that  a  non-resident  ought  only  to  be  appointed  under  special 
justifying  circumstances ;  and  some  States  treat  such  ap- 
pointments as  quite  impolitic.^  Some  States  permit  the  non- 
resident next  of  kin  to  serve  as  administrator  upon  duly  oual- 

administer  her  father's  estate,  if  not  un-  The  statute  of  New  York  enumerates 

fit,  is  conceded  in  Guldin's  Estate,  81  among    other   special    disqualirtcations, 

Penn.  St.  362.  the  conviction  of  an   infamous    crime. 

1  McGooch  V.  McGooch,  4  Mass.  348.  See  McMahon  v.  Harrison,  6  N.  Y. 
And  see  New  York  statute  construed  in  443.  And  see  Stat.  33  &  34  Vict.  c.  23; 
McMahon  v.  Harrison,  6  N.  Y.  443.  Wms.  Exrs.  435. 

2  See  post,  §  132,  as  to  administration  ^  See  Public  Administrator  v.  Hughes, 
during  minority.  And  see  Carow  v.  i  Bradf.  125;  Pico's  Estate,  56  Cal. 
Mowatt,  2  Edw.  (N.  Y.)  57;  Collins  v.  513;  Ferrie  v.  Public  Administrator,  3 
Spears,  i  Miss.  310.  That  the  minor  is  Bradf.  249;  Schoul.  Dom.  Relations, 
married  does  not  qualify  her.  Briscoe  §276;  Wms.  Exrs.  433;  Goodman,  AV, 
V.  Tarkington,  5  La.  Ann.  692.      Nor  L.  R.  17  Ch.  D.  266. 

that  there  fs  no  other  next  of  kin  capa-  ''  Child  v.  Gratiot,  41  111.  357;    Rad- 

ble   to   administer.     Rea  v.  Englesing,  foid  v.   Radford,  5  Dana,   156;    Wick- 

56  Miss.  463.  wire  v.  Chapman,  15  Barb.  302. 

^  Thompson's  Estate,  t,t,  Barb.  334.  *  Chicago  R.  v.  Gould,  64  Iowa,  343; 

*  lb.  Sargent,  AV,  62  Wis.  130;   63  Cal.  458; 

^  I  Wms.  Exrs.  449  mentions  attain-  Frick's  Appeal,  114  Penn.  St.  29.     Cf. 

der  of  treason  or  felony,  outlawry,  etc.  44  Hun  (N.  Y.)  67. 

141 


5    no  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ifying  with  resident  sureties ;  and  in  Massachusetts  such  an 
administrator  must  further  appoint  a  resident  attorney  who 
shall  accept  service  on  his  behalf  and  in  general  represent 
him.^  So  might  the  resident  nominee  of  a  non-resident  kins- 
man be  taken  where  no  suitable  kinsman  within  the  State 
desired  to  administer.^  Alienage  is  considered  no  incapacity 
in  England  as  concerns  personal  estate  ;  but  some  American 
statutes  exclude  or  restrict  the  right  of  aliens,  and  particularly 
non-resident  aliens,  to  administer.^  As  among  next  of  kin, 
some  resident  and  some  non-resident,  those  resident,  if  other- 
wise suitable,  would  seem  worthy  of  a  preference*  Where  in 
fact  several  persons  are  of  the  same  degree  of  kindred  to  the 
deceased,  one  living  out  of  the  State  is  not  entitled  to  admin- 
istration as  of  right ;  but  in  case  those  living  in  the  State  are 
unsuitable,  upon  stronger  grounds,  the  non-resident  may,  at 
the  discretion  of  the  court,  be  appointed  upon  the  non-resi- 
dence terms.^  English  practice  recognizes  the  grant  of  ad- 
ministration to  the  attorney  of  next  of  kin  residing  abroad. 

§  I  TO.  Other  Considerations  for  determining  the  Choice  of 
Administrator.  —  One  determining  consideration  between  next 
of  kin,  in  cases  of  doubt,  may  be  their  relative  extent  of 
interest."  But  another  important  one  is,  the  confidence 
reposed  by  kindred  ;  and  hence,  in  cases  of  conflict,  it  is  not 
unfrequent  to  appoint  the  one  upon  whom  a  majority  of  the 
parties  in  interest  agree. ^  The  wishes  of  the  party  or  parties 
having  the  largest  amount  of  interest  may  in  other  respects 
preponderate  in  the  selection  of  administrator.^     The  party 

1  Mass.    Public    Stat.    c.    132,    §  8;  '^  Leverett  w.  Dismukes,  10  Ga.  98. 
Robie's  Estate,  Myrick  (Cal.)  226.    And          ^  Mandeville  v.  Mandeville,  35  Ga. 
see   Barker,   Ex  parte,   2   Leigh,   719;  243.     This  course  is  sometimes  directed 
Jones  V.  Jones,  12  Rich.  623.  by  statute.     But  it  is  an  old  established 

^  Smith  V.  Munroe,   l  Ired.   L.  345.  rule  in   English   ecclesiastical    practice. 

'^^^ post,  §  116,  to  Public  Administrator.  I  Freem.  258;   Wms.  Exrs.  426;   Budd 

2  Wms.  Exrs.  449;  New  York  Stats.,  v.  Silver,  2  Phillim.  115.  The  rule  is 
cited  Redf.  Surr.  Pract.  138;  4  Dem.  by  no  means  invariable.  Wetdrill  v. 
(N.  Y.)  33.  Wright,     2    Phillim.     248.       See    also 

*  5  Dem.  (N.  Y.)  292.  Stainton,  Goods  of,  L.  R.   2   P.  &  D. 

^  Pickering  v.  Pendexter,  46  N.  H.  69.  2 1 2. 

8  Wms.  Exrs.  439;   Burch,  Goods  of,  '■'  McClellan's  Appeal,   16  Penn.  St. 

2  Sw.  &  Tr.  139.  no. 

142 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §111 

first  seeking  the  appointment  has  some  claim  to  preference.^ 
These,  and  the  other  considerations  already  set  forth,  which 
touch  rather  upon  personal  suitableness  or  competency  for 
the  trust,  the  court  taking  jurisdiction  should  duly  weigh, 
where  controversy  has  arisen,  and  grant  the  administration 
to  such  party  or  parties  in  the  preferred  class  as  shall  seem 
most  proper.^ 

§  1 1 1.  Statute  Order  among  Next  of  Kin  stated. — -  Following 
the  computation  of  kindred  already  set  out,  and  observing 
the  preferences  of  interest,  the  codes  of  many  States  now 
specify  in  order  the  classes  who  shall  be  entitled  to  adminis- 
ter, if  otherwise  competent.  After  providing  as  to  surviving 
husband  or  widow,  they  name  first,  children  (with  their  lineal 
descendants,  it  may  be  presumed)  ;  next,  the  father ;  next, 
the  mother  (or  else  mother,  brothers  and  sisters)  ;  next,  if 
there  are  neither  children  nor  parents,  the  brothers  and  sis- 
ters ;  next,  the  grandparents  ;  next,  nephews,  nieces,  uncles, 
aunts  ;  next,  first  cousins.^ 

On  principle,  it  would  appear,  that,  as  in  distribution,  the 
right  to  administer  as  "next  of  kin"  is  limited  to  the  class 
which  fulfils  that  description  at  the  intestate's  death,  and 
takes  the  surplus ;  thus  excluding  more  distant  kindred  not 
beneficially  entitled.*     But,  according  to  the  law  of  certain 

^  Cordeux  v.  Trasler,  29  Jur.  N.  S.  505.     The  order  under  the  New  York 

587;    Wms.  Exrs.  427,  428.  statute  is  peculiar;    viz.:   first,  the  intes- 

2  In  English  practice,  it  is  said,  a  sole  tate's    widow;     second,    his    children; 

administration  is  preferable,  f^/fr/j /rtr-  third,   his   father;     fourth,  his  mother; 

j(J«j,  to  a  joint  one,  and  a  joint  admin-  fifth,   his   brothers;    sixth,    his   sisters; 

istration  will  never  be  forced.      Wms.  seventh,  his  grandchildren;   eighth,  any 

Exrs.  428;   2  Phillim.  22,  55;   4  Hagg.  of  the  next  of  kin  who  would  be  enti- 

3761  398.     But  where    the   estate   is  a  tied  to  share  in  the  distribution  of  the 

large  and  intricate  one  to  settle,  the  ap-  estate. 

pointment  of  two  or  three  administra-         *  Such  is  the  rule  in  Massachusetts, 

tors  may  be  quite  judicious  in  the  inter-  Cobb  v.  Newcomb,  19  Pick.  337.      And 

est  of  kindred,  and  in  American  practice  it  is  the  English  rule.     Wms.  Exrs.  437. 

the  court  may  probably  exercise  a  liberal  Accordingly,  if  all  who  were  next  of  kin 

discretion  in  this  respect.      See  Reed  v.  at  the  time  of  the  intestate's  death  are 

Howe,  13  Iowa,  50.     Two  separate  co-  dead,   then   the   representative  of  such 

ordinate     administrations     canno       be  next   of  kin,  in  default   of  some   per- 

granted.     Brubaker's  Appeal,  98  Penn.  son  originally  in   distribution,  may  re- 

St.  21.  ceive   the    appointment.      Wms.    Exrs 

8  See  Wms.  Exrs.  425;    2  Bl.  Com.  437;   2  Hagg.  Appendix,  157. 


§    112  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

States,  where  the  nearest  of  kin,  from  death  or  incompe- 
tency, cannot  receive  letters,  the  next  in  order  appear  to  be 
entitled  ;  kindred  in  a  due  turn  of  choice  taking  the  absolute 
precedence  of  creditors  or  strangers.^  Beyond  the  range  of 
husband,  wife,  and  distributees,  who  alone  have  the  legal 
right  to  administer,  the  appointment  in  Mississippi  is  treated 
as  within  the  ample  discretion  of  the  court.^  American  stat- 
utes vary  greatly  in  scope,  however,  and  in  each  State  the 
law  must  be  construed  according  to  the  legislative  expres- 
sion. 

§  1 1 2.  Renunciation  or  Non-Appearance  of  those  entitled  by 
Preference  to  administer ;  Citation.  —  Before  creditors  and 
strangers  in  interest  can  be  admitted  to  the  trust,  it  is  usual 
to  wait  a  reasonable  time  and  require  proceedings  on  the 
part  of  the  petitioner  tantamount  to  summoning  those  entitled 
by  preference  to  appear  and  exercise  their  right  if  they  so 
desire.  For  the  rule,  long  established  in  ecclesiastical  and 
probate  practice,  is  that  the  party  having  a  prior  right  should 
be  cited  or  else  waive  his  right  before  administration  can  be 
granted  to  any  other  person.^  The  citation  is  sometimes  by 
a  personal  service  ;  but  frequently,  in  our  modern  practice, 
by  posters  or  a  simple  newspaper  publication,  the  method 
being  fixed  by  statute  or  rule  of  court,  and  the  citation  issuing 
from  the  register's  ofifice  when  the  petition  to  administer  is 
presented ;  the  course  being  similar  to  that  pursued  in 
obtaining  letters  testamentary,  and  as  preliminary  to  the 
formal  hearing.  To  dispense  with  the  citation,  those  of  the 
class  entitled  to  preference  should  renounce  their  claim 
or  signify  their   assent  to  the  grant  of  the  petitioner's    re- 

1  Churchill  v.  Prescott,  2  Bradf.  304 ;  Grierson,  In  re,  7  L.  R.  Jr.  589.     Let- 

Carthey    v.     Webb,     2     Murph.    268;  ters  issued  in  disregard  of  the  rule  on 

Anderson  v.  Potter,   5    Cal.    63;    Mc-  this  subject    are    invalid,   and   this  al- 

Clellan's   Appeal,  16  Penn.  St.  no.  though  the  statute  is  silent  on  the  sub- 

"^  Byrd  v.  Gibson,  2  Miss.  568.  ject  of  giving  notice  to  those  having  the 

*  Wms.     Exrs.    440,    448;     Barker,  preference.     Gans  v.  Dabergott,  40  N. 

Goods  of,  I  Curt.  592.     For  the  Eng-  J.  Eq.    184.     But  such  letters  are  not 

lish  practice  of  citation,  where  the  next  void,  but  only   voidable.       Garrison  v. 

of  kin   is  insane,  see  Windeatt  v.  Shar-  Cox,  95  N.  C.  353;   Jones  v.  Bittinger, 

land,  L.  R.  2  P.  &  D.  217.     And  see  no  Ind.  476;  post,  c.  6. 

144 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    112 

quest  by  indorsement  upon  the  petition  or  other  writing  of 
record.^ 

A  similar  procedure  appears  highly  suitable  where  one  of 
the  class  entitled  to  preference,  desires  an  appointment,  as 
against  others  of  the  same  class  and  equal  in  right.  But 
where  several  are  equally  entitled,  and  in  general  as  among 
those  from  whom  the  court  is  free  to  select  without  disturb- 
ing a  statute  preference  or  violating  legislative  directions,  the 
citation  is  sometimes  dispensed  with.^  A  court  is  presumed 
to  exercise  its  lawful  discretion  fairly  in  such  a  case  ;  and 
although  parties  passed  over,  who  have  the  statute  priority, 
may  have  the  administration  set  aside  or  reversed  on  appeal, 
when  granted  irregularly  and  in  disregard  of  their  lawful 
rights,  the  appointment,  nevertheless,  remains  valid  mean 
time,  if  the  court  had  jurisdiction,  and  cannot  be  assailed, 
except  directly  and  by  the  parties  aggrieved.^ 

Renunciation  or  waiver  of  the  right  should  appear  of 
record  in  order  to  bind  the  parties  first  entitled  to  adminis- 
ter ;  nor  is  the  language  of  such  a  writing  to  be  strained 
beyond  the  obvious  sense.*  Thus,  where  all  the  next  of  kin 
consent  that  one  of  them,  A.,  shall  serve  if  he  can  find  secu- 
rity, and  A.,  unable  to  give  security,  nominates  a  stranger,, 
this  does  not  comply  with  the  condition.^ 

^  Cobb  V.  Newcomb,  19  Pick.  336 ;  ciation  by  those  having  prior  right  shall 
Arnold  v.  Sabin,  i  Cush.  525;  Talbert,  be  in  writing.  Barber  v.  Converse,  I 
Succession  of,  16  La.  Ann.  230;  Tor-  Redf.  (N.  Y.)  330. 
ranee  v.  McDougald,  12  Geo.  526.  The  2  gee  Widger,  Goods  of,  3  Curt.  55; 
Massachusetts  statute  provides  that  ad-  Wms.  Exrs.  448 ;  Peters  v.  Public  Ad- 
ministration of  the  estate  of  an  intestate  ministrator,  i  Bradf.  (Sur.)  200.  And 
may  be  granted  to  his  widow  or  next  of  see  statute  cited  in  Bean  v.  Bumpus,  22 
kin,  or  both,  as  the  probate  court  shall  Me.  549,  as  to  dispensing  with  notica 
deem  fit;    and  if  they  do  not  either  take  in  certain  cases. 

or  renounce  administration,  they  shall,  if  ^  See  post,  c.  6,  as  to  effect  of  appoint 

resident  within  the  county,  be  cited  by  ment,  etc. 

the  court  for  that  purpose.  Cobb  v.  *  Arnold  v.  Sabin,  i  Cush.  525. 
Newcomb,  JM/;-a  /  Stebbins  v.  Lathrop,  °  Rinehart  v.  Rinehart,  27  N.J.  Eq 
4  Pick.  :^;^.  As  to  affidavit  that  citation  475;  McClellan's  Appeal,  16  Penn.  St. 
was  given,  see  Gillett  v.  Needham,  37  1 10.  It  is  held  in  England  that  where 
Mich.  143.  A  citation  in  South  Carolina  a  party  entitled  to  administer  has  re- 
has  sometimes  been  published  by  being  nounced,  such  renunciation  may  l>e 
read  in  church  by  an  officiating  clergy-  retracted  at  any  time  before  the  admin- 
man.  Sargent  v.  Fox,  2  McCord,  309.  istration  has  passed  the  seal.  West  v. 
Some  codes  expressly  insist  that  renun-  Wilby,  3  Phillim.  379.     Probably  under 


§    I  1 3  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

§  113.  Nomination  of  a  Third  Person  by  the  Person  entitled  to 
administer.  —  It  is  held  that  a  renunciation  of  her  claim  by 
the  widow  does  not  give  her  the  right  to  nominate  another 
person  to  the  exclusion  of  the  next  of  kin.^  Nor  can  kindred 
who  waive  the  right  to  serve  dictate  the  selection  of  a 
stranger.^  But  in  Kentucky,  the  court,  in  granting  adminis- 
tration to  the  widow,  may,  at  her  request,  associate  with  her 
a  stranger  in  blood  to  the  intestate,  although  the  blood  rela-  ' 
tives  object.^  And  in  New  York,  where  a  widow  renounced 
her  right  to  administer  her  husband's  estate,  and  recom- 
mended another  person,  all  the  children  being  minors,  the 
appointment  of  her  nominee  was  considered  proper.*  Even 
granting,  as  we  must,  that  the  court  is  not  bound  by  the 
nomination  made  by  a  widow  or  the  kindred  first  entitled  to 
administer,  yet  the  wishes  and  preferences  of  those  having  the 
greatest  interest  in  preserving  the  estate  are  entitled  to  great 
weight.^  And  hence  the  appointment,  at  the  court's  discre- 
tion, of  any  suitable  person  upon  whom  the  next  of  kin  enti- 
tled to  the  office,  or  a  majority  of  them  may  agree,  is  highly 
favored  in  American  practice ;  ^  the  rights  of  more  remote 
kindred,  creditors  and  all  strangers  in  interest  being  post- 
poned to  their  expressed  choice  accordingly.  Where  the 
next  of  kin  reside  abroad,  their  resident  nominee  may  receive 


some  of  our  American  codes  this  would  the  right  of  administration  cannot  be 

not  be  permitted,  unless,  at  all  events,  delegated.      Georgetown      College      v. 

good    reason    for    the    retraction   was  Browne,  34  Md.  450. 

shown.      See   Carpenter    v.   Jones,   44  ^  Cresse,  Matter  of,  28  N.  J.  Eq.  236; 

Md.  625;    Kirtlan,    Estate  of,   16  Cal.  Root,  Re,  i  Redf.  257. 

161.     But  executors  and  administrators  ^  Shropshire  z^.  Withers,  5  J.  J.  Marsh. 

appear  to  be  alike  favored  in  New  York  210. 

as   under  the   English   rule.     Casey   v.  *  Sheldon  v.   Wright,   5  N.   Y.  497. 

Gardiner,  4  Bradf.  (N.  Y.)  13.  And  this  without  citing  kindred.     lb. 

The  law  will  not  sanction  an  agree-  ^  McBeth  ?'.   Hunt,  2  Strobh.  (S.  C.) 

ment  whose  consideration  is  the  relin-  335;    McClellan's  Appeal,  16  Penn.  St. 

quishment  of  the  right  to  administration  1 10. 

by  one  to  the  other.    Bowers  z/.  Bowers,  ^  Mandeville   v.    Mandeville,  35  Ga. 

26  Penn.  St.  74.  243;    Munsey   v.    Webster,    24  N.   H. 

1  Cobb   V.  Newcomb,    19   Pick.   332.  126;     Halliday   v.   Du    Bose,    59   Ga. 

And  see  Triplett  v.  Wells,  Litt.  (Ky.)  268. 
Bel.  Cas.  49.     Under  Maryland  statutes 

146 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    I  I4 

the  appointment ;  ^   any  such    attorney,  so  called,    however, 
being  responsible  to  all  parties  in  interest.^ 

Inasmuch  as  the  regular  administration  of  estates,  whether 
testate  or  intestate,  is  so  highly  favored  at  the  present  day, 
the  selection  of  third  persons  of  integrity,  experience,  and 
sagacity  for  such  responsible  duties  must  often  be  most 
desirable.  And  if  a  testator  makes  such  a  selection,  or  asso- 
ciates others  with  his  next  of  kin  or  legatees  in  the  trust,  for 
reasons  admittedly  sound,  there  seems  no  good  reason  why 
the  next  of  kin  themselves,  if  the  estate  be  intestate,  should 
not  exercise  a  corresponding  discretion  and  nominate  some 
trustworthy  friend  rather  than  forfeit  all  claim  to  administer 
by  failing  to  qualify  personally  for  the  office. 

§  114.  UnsuitablenesB  of  a  Judge  of  Probate,  Corporation,  etc., 
for  the  Appointment.  —  A  judge  of  probate  would  be  an  un- 
suitable person  to  receive  the  appointment  from  his  own 
hands  or  within  his  own  jurisdiction;  and  delicacy,  moreover, 
ought  to  prevent  any  judge  from  serving  as  administrator 
in  an  adjoining  county,  or  at  least  where  he  might  sometimes 
be  called  upon  to  hold  a  court  ;  though  probate  judges  in  this 
country  are  not  always  found  so  scrupulous  about  taking  ad- 
vantage of  their  official  position,  to  emulate  the  example  of 
the  early  English  bishops.  Legislation  should  curb  such 
temptations,  and  keep  local  judges  of  probate  from  throwing 
estates  and  probate  business  into  one  another's  hands.  Prob- 
ably, for  a  judge  to  appoint  himself  administrator  would  be 

1  Supra,  %   109;   Smith  v.  Munroe,  l  2  Chambers  v.  Bicknell,  2  Hare,  536. 

Ired.  L.  345;  Wms.  Exrs.  439;  Cotter's  But  the  court  will  not  grant  adniinistra- 

Estate,  54  Cal.  215,    But  in  other  cases  tion  to  the  attorney-in-fact,  where  the 

except  for  the  "  special  circumstances,"  party  himself  is  resident  in  the  jurisdic- 

etc,  under  recent  statutes,  the  right  to  tion,  and  able  to  take  it  himself.     Burch, 

select  a  third  person  appears  not  to  be  In   re,  2    Sw.  &  Tr.    139.     Where  the 

favored  in  English  practice.     See  Wms.  sole  next  of  kin  was  a  married  woman 

Exrs.  446,  447;    Stat.   20  &  21   Vict.  c.  living  apart    from  her    husband,  whose 

77>  §  73-     Unless  it  be  some  one  related  address    was    unknown,    administration 

to   the  family.     Tyndall,  Goods  of,   30  was   granted   with   her   consent    to  the 

W^  R.  231.     An  impartial  stranger  may  trustees   of    her    marriage    settlement, 

be  preferable  to  widow  or  kindred  where  Maychell,    Goods    of,    26    W.    R.    439. 

these  are  unsuitable.     Hassinger's  Ap-  The  nomination  of  a  non-resident  is  not 

peal,  10  Penn.  St.  454.  to  be  favored  where  the  policy  of  the 


§    115  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

void,  as  against  public  policy.^  But  as  to  the  appointment  of 
his  own  son  by  a  judge  of  probate,  it  is  recently  held,  that, 
although  manifestly  improper  and  even  voidable,  such  ap- 
pointment is  not  void.2  A  trust  company  or  other  corpora- 
tion in  New  York  expressly  empowered  to  administer  may  not 
be  appointed  on  the  request  of  those  entitled  to  administer  so 
as  to  take  priority  even  of  a  public  administrator.^ 

§  115.  Right  of  Creditor  or  Stranger  to  be  appointed  in 
Default  of  Kindred,  etc.  —  A  creditor  having  a  right  of  action 
against  the  deceased  is  in  most  States  the  party  entitled  to 
administration  on  the  intestate's  estate,  where  the  widow 
and  next  of  kin  refuse  or  neglect  to  apply,  or  are  incompe- 
tent.* The  New  York  statute  specifies  as  to  creditors,  that 
the  creditor  first  applying,  if  otherwise  competent,  shall  have 
the  preference.^  The  largest  creditor,  or  some  principal 
creditor  of  the  deceased,  takes  priority,  according  to  the 
expression  of  other  local  codes.^  By  English  practice,  too, 
a  creditor  may  take  out  administration  on  an  intestate  estate, 
if  none  of  the  next  of  kin  or  others  in  legal  priority  do  so ; 
this  rule  resting  in  custom  and  not  statute  law,  and  the 
court  frequently  selecting  a  larger  creditor  instead  of  the 
creditor  applying.'^  In  Texas,  however,  such  "proper  per- 
son "  as  will  accept  and  qualify  is  designated,  and  it  is  held 
that  a  creditor  as  such  has  no  special  claim  to  the  appoint- 
ment   over   a    confidant    of    the    deceased    not    interested.^ 


law  discourages  the  appointment  of  non-  to   nomination    of  a    third   person  by 

residents.     Supra,  §  109;  Sargent,  Re,  creditors,  see   Long   v.  Easly,  13  Ala. 

62  Wis.  130.  239.      A    relative    who    becomes   sole 

^  A  judge  of  probate  interested  in  the  creditor  has  a  strong  claim.     Lentz  v. 

estate  has  no  right  to  grant  administra-  Pilert,  60  Md.  296. 

tion.     Sigourney  v.  Sibley,  22  Pick.  507.  ^  Wms.  Exrs.  7th  ed.  440-442 ;  2  Bl. 

And  see  Thornton    v.  Moore,  61   Ala.  Com.  505;   2  Cas.  temp.  Lee,  324,  502; 

347.  Maidman  v.  All  Persons,  i   Phillim.  53. 

2  Plowman  z/.  Henderson,  59  Ala.  559;  The  applicant  must  make  affidavit  as  to 
79  Ala.  505.  the  amount,  etc.,  of  his  debt,  and  that 

3  Goddard's  Estate,  94  N.  Y.  544.  he  has  cited  in  the  kindred.     Von  Desen, 
*  Mitchell    V.    Lunt,   4   Mass.    654;  Goods  of,  43  L.  T.  532. 

Stebbins  v.  Palmer,  i  Pick.  71.  ^  Cain  v.  Haas,  18  Tex.  616.     And  as 

^  New  York  Laws,  1867,  c.  782,  §  6.  to  Virginia,  see  McCandlish  v.  Hopkins, 

^  Curtis  V.  Williams,  33  Ala.  570.     As  2  Leigh,  267. 

148 


CHAP.    III.]       APPOINTMENT   OF   ADMINISTRATORS.  §   I  15 

Administration  cannot  in  general  be  granted  to  a  creditor  or 
stran-er  until  after  the  lapse  of  the  time  allowed  for  the 
application  of  the  widow,  next  of  kin,  and  others  previously 
entitled  and  suitable,  nor  except  upon  their  failure  to  pursue 
their  rights,  notwithstanding  a  due  citation.^ 

The  reason  why  a  creditor  has  usually  been  selected  under 
such  circumstances,  is  in  order  that  his  claim  may  not  be 
lost  for  want  of  administration  upon  the  estate.^  He  is  a 
person  in  interest.  The  amount  of  one's  claim  seems  not 
essential,  except  it  be  for  preferring  the  principal  creditor."^ 
But  it  ought  to  be  a  claim  which  survives  by  law.'*  The 
creditor  should  make  affidavit  or  be  prepared  to  prove  his 
claim  before  the  probate  court,  as  a  prerequisite  to  obtaining 
the  appointment.^  Administration  may  be  committed  to  one 
or  more  creditors  ;  but  one  is  preferred  by  the  court  where 
the  estate  is  small  and  easily  managed.^  A  creditor  having 
ample  security,  which  he  could  enforce  without  an  adminis- 
tration at  all,  appears  not  to  have  been  favored  for  the  trust 
in  the  English  ecclesiastical  practice,  lest  simple  contract 
creditors  should  receive  detriment ;  ">  and  administration  is 
regularly  refused  to  one  who  buys  up  a  debt  after  the  death 
of  the  deceased,  and  so  becomes  a  creditor.^  Policy,  how- 
ever, not  principle,  seems  to  have  dictated  this  rule  of  refusal, 
for  there  are  admitted  exceptions  ;  ^  and  not  only  has  a  cred- 
itor's assignee  in  bankruptcy  been  permitted  to  apply  in  his 

^  MuUanphy  v.  County  Court,  6  Mo.  ^  Arnold  v.  Sabin,  i  Cush.  525. 

563;    Haxall    V.    Lee,    2    Leigh,    267;  *  Stebbins    v.    Palmer,    i    Pick.    71 ; 

Wms.  Exrs.  440,  441.     Thirty  days  is  Smith  v.  Sherman,  4  Cush.  408.     That 

the  period  allowed  in  some  States   to  the    claim    would    be    barred,    if    the 

the   widow  and  next  of  kin,  before  a  statute  of  limitations  were  pleaded,  is 

.stranger  can  apply.     Munsey   v.  Web-  held  no  objection.     Caig,  £x  parte,  T. 

ster,  24  N.  H.  126;   Cobb  z/.  Newcomb,  U.  P.    Charlt.   (Ga.)    159;    Coombs   v. 

19   Pick.  336.     Six   months'    delay  im-  Coombs,  L.  R.  i  P.  &  D.  288. 

ports  renunciation  of  priority  in  North  ^  Wms.  Exrs.  442;    Aitkin  v.  Ford,  3 

Carolina.     Hill  v.  Alspaugh,  72  N.  C.  Hagg.  193. 

402;  95   N.  C.  353.     For  the  peculiar  "  Wms.   Exrs.  442;    Harrison   v.  ,\11 

limitation    in    Alabama,    see    Davis  v.  Persons,  2  Phillim.  249. 

Swearingen,    56    Ala.    539.      And   see  ^  Roxburgh !».  Lambert,  2  Hagg.  557. 

Frick's  Appeal,  114  Penn.  St.  29.  "*  Coles,  Goods  of,  3  Sw.  &  Tr.   181 ; 

2  Elme  V.  Da  Costa,   i    Phillim.   177;  Wms.  Exrs.  443. 

Brackenbury,  Goods  of,  25  W.  R.  698;  ^  lb.;    Downward  v.  Dickinson,  3  Sw. 

Stevens  v.  Gaylord,  11  Mass.  256.  &  Tr.  564. 

149 


§115  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

Stead ;  ^  but  likewise  a  surety  who,  after  the  death  of  his 
principal,  has  cancelled  an  obligation  ;  ^  one,  too,  like  an 
undertaker,  whose  claim  accrues  after  the  death  in  all  strict- 
ness, and  yet  in  connection  with  rendering  last  offices  to  the 
deceased,  such  as  a  preferred  claim  upon  the  estate  may  well 
be  based  upon,  independently  of  administration.^  The  cred- 
itor should,  of  course,  be  a  suitable  and  competent  person  for 
the  trust,  as  in  other  cases,  and  he  should  give  security  to 
administer  ratably,  or  otherwise  comply  with  the  statute 
requirements  as  to  qualifying  for  the  office.'* 

If  there  is  no  husband,  widow,  next  of  kin,  or  creditor, 
willing  and  competent  to  the  trust,  administration  may  be 
granted  to  such  other  person  as  the  court  deems  fit.  Such 
has  long  been  the  English  practice,^  and  statutes  confirm  or 
enlarge  this  judicial  discretion  both  in  England  and  the 
United  States.^  Distant  kindred,  having  no  legal  interest 
in  the  distribution,  may  thus  receive  letters  of  administra- 
tion ;  or  an  entire  stranger  in  point  of  blood  and  interest.'^ 

A  creditor  entitled  to  administer  may,  like  parties  prior  in 
right,  renounce  the  trust,  or  fail  to  respond  when  cited  in.^ 

1  Wms.  Exrs.  443;  Schwertfegen,  692;  Wyckhoff,  Goods  of,  3  Sw.  &  Tr. 
Goods  of,  24  W.  R.  298 ;  and  see  20.  We  have  already  seen  that  in  some 
Burdett,  Goods  of,  45  L.  J.  71.  of  the  United  States  all  kindred  in  or- 

2  Williams  v.  Jakes,  35  L.  J.  P.  M.  der,  and  not  simply  "  next  of  kin,"  in 
&  A.  60.  distribution,  may  have  a  legal  right  to 

3  Newcombe  v.  Beloe,  L.  R.  i  P.  &  D.  administer.  In  case  of  a  lunatic  next 
314.  of  kin,  a  stranger  was  appointed,  with 

*  Brackenbury,  Goods  of,  25  W.  R.  the  consent   of  the    lunatic's   guardian 

698.     The  largest  creditor  may  in  the  and  own  next  of  kin.     Hastings,  Goods 

court's  discretion  be  preferred    to    one  of,  47  L.  J.  P.  D.  A.  30.     As  to  "  spe- 

requested  by  the  majority  of  the  credi-  cial  circumstances,"  see,  further,  Clark, 

tors  and  by  the  intestate's  widow  besides.  Goods  of,  25  W.  R.  82;  Tyndall,  Goods 

Ostendorff,  Re,  17  S.  C.  22.  of,  30  W.  R.  231.     Guardians  or  trus- 

^  Wms.  Exrs.  445;   Davis  v.  Chanter,  tees  are  thus  substituted.     Bond,  Goods 

14  Sim.  212.  of,  L.  T.  T,T,  N.  S.  71. 

^  Mass.    Pub.    Stats,    c.     130,    §    l;  »  carpenter    v.    Jones,    44    Md.    625. 

Thompson    v.  Hucket,  2    Hill  (S.  C.)  Such  appointment  of  a  suitable  person 

347;      English    Probate    Act    of   1857  being  discretionary  with  the  judge,  and 

(Stat.  20  &  21  Vict.  c.  77,  §  73);  cited  the  time  having  expired  within  which 

Wms.  Exrs.   446,  447.       "  Special  cir-  the  next  of  kin  or  creditors  might  have 

cumstances "  are  recognized,  under  this  appeared,  the   fact    of    their    incompe- 

English  act,  as  affording  ground  for  de-  tency    or    unwillingness    need    not    be 

pai  ture  from  the  rule  of  priority.  alleged  by    the  petitioner    for  appoint- 

■^  lb.;     Keane,    Goods   of,    i    Hagg.  ment.     21  Neb.  663. 

150 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 16 

§  Il6.  Public  Administrator  or  other  Official  appointed  in 
Certain  Cases.  —  In  English  practice,  administration  by  a  pub- 
lic officer  on  behalf  of  absentee  or  non-resident  parties  in 
interest  is  not  clearly  provided  for.  That  discretion  of  the 
court,  to  which  we  alluded  in  the  last  section,  and  which  may 
be  exercised  in  default  of  competent  creditors  and  next  of 
kin,  fastens  upon  kindred  more  distantly  related,  the  guardian 
or  agent  of  an  incompetent  distributee,  and  other  persons 
having  a  remote  interest,  if  such  may  be  had.  But  as  to  an 
utter  stranger,  or  the  mere  appointee  of  the  court  invested 
with  authority,  in  the  total  absence  of  kindred,  it  has  been 
deemed  that  letters  of  administration  should  only  be  granted 
for  such  special  purposes  as  collecting  and  preserving  the 
effects,  and  doing  what  must  be  strictly  beneficial  to  the 
estate.!  jj^g  Court  of  Probate  Act  of  1857  enlarged  that 
jurisdiction  which  the  modern  spiritual  courts  had  so  cau- 
tiously exercised,  conferring  upon  the  new  tribunal  the  power 
under  "  special  circumstances "  to  pass  over  the  person  or 
persons  who  might  otherwise  be  entitled  to  the  grant  of 
administration,  and  appoint  such  person  as  the  court  in  its 
discretion,  should  think  fit;^  a  discretion  which  is  usually 
exercised  in  favor  of  more  distant  kindred,  family  connections, 
or  the  fiduciary  or  agent  of  the  person  beneficially  entitled. 
In  our  next  section  this  subject  will  be  further  examined.^ 

But  the  wise  policy  of  the  legislature  has  been,  in  several 
of  the  United  States,  to  commit  administration  to  a  desig- 


The  expiration  of  a  certain  time  for  estate  being  referred  to  as  one  of  the 

those  having  prior  right  bears  upon  this  "  special  circumstances  "  alluded  to  by 

practice.     Markland  v.  Albes,  8i   Ala.  the    statute.     See    Hawke  v.   Wedder- 

433.  burne,  L.  R.   i   P.  &  D.  594,  and  other 

1  Wms.    Exrs.    445,    446;     Radnall,  cases  cited  in  Wms.  Exrs.  447. 

Goods   of,    2    Add.   232;    Clarkington,         Where    a  creditor  seeks  administra- 

Goods  of,  2  Sw.  &  Tr.  380.  tion  in  default  of  appearance  of  next  of 

2  Act  20  &  21  Vict.  c.  77,  §  73.  This  kin  —  as  where  the  latter  are  abroad  or 
authority  appears  to  be  quite  strictly  have  no  known  address  —  and  they  fail 
construed  by  the  tribunal  in  question,  to  appear  to  a  citation  by  advertisement, 
which  declines  to  make  arbitrary  use  of  he  must  make  affidavit  that  service  was 
its  discretion.  The  section  is  held  not  attempted  and  failed,  and  tiiat  the  next 
to  apply  where  there  is  no  absence  of  of  kin  have  no  known  agent  in  England, 
persons  entitled  to  administration,  etc.,  Von  Desen,  Goods  of,  43  L.  T.  532. 
and  no  insolvency  —  insolvency  of  the         ^  ggg  g  wj^post. 


§    I  l6  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

natcd  public  officer  wherever  those  survivors  are  wanting 
whose  vigilance  should  protect  distribution  and  the  general 
interests  of  the  dead  person's  estate.  To  a  mere  stranger 
the  temptation  in  such  a  case  would  be  to  appropriate  all  to 
himself ;  debtors  would  of  choice  continue  indebted ;  and 
even  a  creditor  who  administered  in  his  partial  interest 
might  plunder  the  estate  under  pretext  of  asserting  a  legal 
claim.  A  probate  court  cannot  readily  keep  vigilance  over  a 
miscellaneous  throng  of  administrators  watched  by  no  private 
persons  in  interest,  nor  see  that  the  security  one  has  given 
remains  good  and  ample.  There  may  be  urgent  need  of  an 
immediate  administration,  notwithstanding  the  absence  of 
a  known  husband,  widow,  or  kindred  ;  these,  if  wanting  at 
first,  may  present  themselves  afterwards  ;  and,  in  final  default 
of  such  priority,  the  State  falls  heir  to  the  final  balance  of 
the  estate.  Hence,  the  modern  creation  of  an  office,  known 
usually  as  that  of  public  administrator.  The  public  adminis- 
trator, receiving  letters  in  any  and  all  proper  cases  of  intes- 
tacy, collects  and  preserves  the  estate,  adjusts  all  claims  upon 
it,  charges  it  with  such  compensation  for  his  service  as  the 
court  may  approve,  corresponds  with  the  non-resident  or 
absent  husband,  widow,  or  next  of  kin,  should  such  be  found 
out,  and  finally  distributes  the  residue  according  to  law,  turn- 
ing it  into  the  State  treasury  when  the  administration  is  com- 
pleted, unless  the  rightful  claimant  has  meantime  taken  the 
trust  into  his  own  charge  or  established  a  title  to  the  surplus 
as  distributee.  Such  an  officer  is  subject  to  the  double  scru- 
tiny of  the  probate  court  and  the  State  Executive  ;  creditors 
and  all  others  in  interest  may  always  inquire  into  the  suffi- 
ciency of  his  bonds  ;  his  accounts  are  regularly  returned  and 
recorded  under  special  safeguards  created  by  law  against 
fraud,  embezzlement,  and  concealment ;  while  his  general 
official  bond,  if  such  be  furnished  by  him,  dispenses  with  all 
necessity  of  finding  special  bondsmen  for  numerous  petty 
estates,  and  so  facilitates  an  economical  settlement.  The 
public  administrator  performs  the  usual  functions  and  is  sub- 
ject to  the  usual  rules  which  pertain  to  ordinary  adminis- 
tration ;   he  holds,  moreover,  a  public  trust,  —  insignificant, 

152 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS. 


§  ii6 


perhaps,  but  honorable.  He  is,  in  a  sense,  representative 
and  attorney  of  the  presumed  heir  and  distributee,  namely, 
the  State  ;  and,  more  than  this,  he  is  charged  with  the  con- 
cerns of  all  private  persons  interested  in  the  estate,  whoever 
and  wherever  they  may  be ;  winding  up  the  affairs  of  the 
deceased  on  behalf  of  creditors  and  absent  kindred  according 
to  their  respective  rights,  if  any  such  there  be.  Intruder,  as 
such  an  official  must  seem  to  sly  pilferers,  exorbitant  claim- 
ants, skulking  debtors,  and  the  whole  swarm  of  meddlesome 
friends  and  spurious  relatives  that  gather  about  the  corpse 
of  him  who  has  left  property  accessible,  but  none  to  represent 
the  title,  the  public  administrator,  rightly  viewed,  is  ne.xt 
friend  of  all  who  may  be  legally  concerned,  and  his  authority 
should  befit  the  peculiar  exigencies  under  which  the  law,  with 
sound  wisdom,  invokes  it  ;  requiring  him  to  act  always  with 
energy,  usually  upon  his  sole  personal  responsibility,  and 
often  in  the  face  of  a  bitter,  if  not  superstitious,  opposition.^ 


1  The  Massachusetts  statute  provides 
that  if  the  deceased  leaves  no  l<no\vn 
widow,  husband,  or  next  of  kin  in  the 
State,  administration  shall  be  granted 
to  a  public  administrator  in  preference 
to  creditors.  In  each  county  one  or 
more  public  administrators  are  appointed 
by  the  governor,  and  it  is  the  duty  of 
such  administrator,  upon  the  foregoing 
state  of  facts,  to  administer  upon  the 
estate  of  any  person  who  dies  intestate 
within  his  county,  or  dies  elsewhere 
leaving  property  in  such  county  to  be 
administered.  But  administration  will 
not  be  granted  to  the  public  adminis- 
trator when  the  husband,  widow,  or  an 
heir  of  the  deceased  claims  in  writing 
the  right  of  administering,  or  requests 
the  appointment  of  some  other  suitable 
person,  if  such  husband,  widow,  heir, 
or  other  person  accepts  the  trust  and 
gives  proper  bond;  and  such  husband, 
widow,  heir,  or  other  person  may  be 
appointed  after  letters  of  administration 
have  been  granted  to  a  public  adminis- 
trator and  before  the  final  settlement 
of  the  estate.  So  may  a  will  be  proved 
and  allowed  after  his  letters  are  granted. 

I 


Upon  such  appointment  of  a  successor 
and  his  qualification,  the  public  admin- 
istrator shall  surrender  his  own  letters, 
with  an  account  of  his  doings,  and  his 
power  over  the  estate  shall  cease.  Mass. 
Pub.  Stats,  c.  131.  What  aids  in  dis- 
tinguishing this  officer  as  one  invested 
with  plenary  powers,  and  not  the  mere 
appointee,  in  fact,  of  the  probate  court, 
is  a  further  provision  that  as  to  estates 
under  twenty  dollars  in  value,  he  shall 
proceed  summarily  without  prt)curing 
letters  of  administration  at  all,  ccmvert- 
ing  assets  into  cash,  and  accounting 
directly  with  the  State  treasurer  for  the 
proceeds.     lb.  §  18. 

Public  administrators  are  appointed 
in  other  States  with  peculiar  functions 
prescribed  by  statute;  as  in  New  York, 
Louisiana,  Missouri,  Illinois,  and  Cali- 
fornia; such  administration  being  found 
chiefly  useful  at  the  large  centres  of 
wealth  and  population.  The  reported 
cases  are  few  which  relate  to  such  offi- 
cers; and  this  is  well,  for  the  estates 
which  reach  their  hands  are  usually  too 
small  to  bear  litigation,  and  require  a 
prudent  management,  consisting  at  most 

53 


§  117 


EXECUTORS    AND    ADMINISTRATORS.  [pART    II. 


for 


I  1 7.    English  Rule  in  Cajses  Analogous  to  Those  which   call 
a  Public    Administrator.  —  Public   adminis-. ration    is  tlius 


of  a  few  thousand  dollars,  and  more 
frequently  of  a  few  hundred  or  less. 
The  public  administrator's  duties  in 
New  York  are  delined  by  statute;  and 
by  virtue  of  his  office,  and  without  a 
special  delegation  of  powers  by  letters 
of  appointment  from  the  probate  court, 
such  administrator  may  settle  sm.all 
estates  (as  e.g.,  where  the  value  does 
not  exceed  $100),  and  in  general  per- 
form the  functions  of  collector  or  spe- 
cial administrator  before  procuring  a 
formal  grant  of  administration.  Redf. 
Surr.  Pract.  175-180.  See  Union  Mu- 
tual Life  Ins.  Co.  v.  Lewis,  97  U.  S. 
Supr.  682.  As  to  Alabama,  see  Mc- 
Guire  v.  Buckley,  58  Ala.  1 20. 

The  public  administrator  in  New  York 
city  is  entitled  to  administer  where  next 
of  kin  is  not  in  the  State  or  is  otherwise 
disqualified  to  administer.  Public  Ad- 
ministrator V.  Watts,  I  Paige,  357;  4 
Dem.  33.  But  cf.  Public  Administrator 
V.  Peters,  i  Bradf.  100,  preferring  rela- 
tives in  the  statute  order  named.  PubHc 
administrator  is  preferred  in  cases  of 
illegitimacy.  Ferrie  v.  Public  Admin- 
istrator, 3  Bradf.  249. 

The  city  of  New  York  is,  under  the 
statute,  responsible  for  the  application 
of  all  moneys  received  by  the  public 
administrator  "  according  to  law  ";  but 
not  for  effects  unlawfully  taken  by  him 
as  belonging  to  an  intestate,  but,  in 
fact,  belonging  to  another.  Douglass 
v<  New  York,  56  How.  (N.  Y.)  Pr.  178. 
Grant  of  administration  to  a  public  ad- 
ministrator should  only  be  upon  due 
citation.  Proctor  v.  Wanmaker,  i  Barb. 
Ch.  302.  But  see  5  Dem.  259,  as  to 
irregularities  not  fatal  on  his  part  in 
procuring  the  grant. 

In  Illinois,  contrary  to  the  usual 
policy,  a  creditor  is  preferred  to  the 
public  administrator,  108  111.  128, 
444- 

Expressed  wish  of  decedent  or  next 
of  kin  may  be  disregarded  in  California. 
Morgan's  Estate,  53  Cal.  243.     Public 

I 


administrator  preferable,  in  court's  dis- 
cretion, to  the  noininee  of  a  non-resident 
executor  in  that  State.  Murphy's  Estate, 
Myrick  (Cal.)  185.  And  preferred  to 
nominee  of  non-resident  next  of  kin. 
57  Cal.  81.  Or  to  a  creditor.  64  Cal. 
226,  228.  As  to  preferring  the  public 
administrator  to  kindred  who  are  not 
"  next  of  kin,"  the  language  and  prac- 
tice under  the  statutes  of  appointment 
must  determine.  See  Langworthy  v. 
Baker,  23  111.  484;  supra,  §  ill.  And 
see  Hanover,  Re,  3  Redf.  (N.  Y.)  91. 
Administration  granted  to  the  attorney 
of  a  foreign  administrator,  however,  as 
matter  of  comity,  saving  certain  rights 
of  a  public  administrator.  Hanover, 
He,  3  Redf.  91.  See  c.  post  as  to  foreign 
and  ancillary  appointments.  Prior  right 
of  public  administrator  over  attorney 
for  disqualified  next  Qf  kin.  Blank, 
Matter  of,  2  Redf.  (N.  Y.)  443.  But 
the  public  administrator's  right  exists 
only  in  case  of  intestacy.  Nunan's  Es- 
tate, Myrick,  238.  As  to  conflict  with 
creditor,  see  Doak,  Estate  of,  46  Cal. 
573.  Semble  that  if  no  one  else  can  be 
found  for  the  trust,  the  public  adminis- 
trator must  serve.  Callahan  v.  Griswold, 
9  Mo.  784;  Johnston  v.  Tatum,  20  Ga. 
775.  In  Louisiana  the  public  adminis- 
trator is  postponed  to  the  attorney-in- 
fact  of  an  heir.  Henry's  Succession,  31 
La.  Ann.  555.  And  otherwise  limited 
as  to  contests.  Miller,  Succession  of,  27 
La.  Ann.  574.  As  to  citing  in  a  widow 
present  in  the  State,  see  Dietrich's  .Suc- 
cession, 32  La.  Ann.  364.  In  Louisiana 
a  public  administrator  may  be  appointed 
where  the  executor  is  under  duress  for 
the  murder  of  the  testatrix.  Tovvnsend's 
Succession,  36  La.  Ann.  535.  As  to  a 
trust  company,  see  Goddard's  Estate, 
94  N.  Y.  544. 

The  language  of  some  local  statutes 
requires  not  only  that  the  public  admin- 
istrator shall  yield  to  the  claim  of  any 
one  of  foreign  next  of  kin  to  administer, 
but  also  to  any  suitable  nominee  of  such 

54 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS. 


§    117 


seen  to  apply  most  especially  to  estates  which,  in  default  of 
nearer   known   distributees,    are   likely    to  go  to  the    State,  . 
subject  to  the  further  assertion  of  any  such  claims  upon  the 


a  kinsman.  However  this  may  be,  the 
writer  thinks  that  a  non-resident  next 
of  kin  should  not  be  permitted  to  nomi- 
nate another  non-resident  to  the  utter 
exclusion  of  the  resident  public  admin- 
istrator and  resident  creditors. 

These  points  may  be  noted  as  to  the 
official  authority  of  a  public  adminis- 
trator, (i)  Jurisdiction  may  be  claimed 
by  him  on  the  ground  that  the  last 
domicile  or  residence  of  the  intestate 
was  in  the  county  (or  simply  perhaps 
that  the  intestate  died  there),  or  because 
the  intestate  left  property  in  the  county 
to  be  administered,  no  matter  where  he 
died  or  resided;  the  facilities  for  admin- 
istration being  extended  as  far  as  possible 
to  all  such  cases  on  a  simple  showing 
of  one's  death,  leaving  assets.  But 
property  to  be  administered,  or  some 
occasion  for  granting  administration, 
should  exist  in  either  case.  (2)  This 
public  officer  is  preferred  to  creditors, 
distant  kindred,  unauthorized  strangers, 
and  absent  or  non-resident  next  of  kin, 
as  the  person  on  the  whole  most  suitable 
for  managing  and  settling  an  estate  when 
there  is  no  known  husband,  widow,  or 
next  of  kin  to  the  deceased  within  the 
State.  (3)  But  the  priority  of  surviving 
husband,  widow,  and  next  of  kin  claim- 
ing to  administer  is  fully  preserved,  and 
at  any  time  before  the  estate  is  settled, 
should  any  such,  even  if  non-resident, 
appear,  such  a  person's  wishes  and 
claim  to  administer  or  choice  will  be 
respected,  and  the  public  administrator 
must  give  way;  and  so,  too,  should  a 
will  be  probated.  (4)  Nevertheless, 
the  non-resident  husband,  widow,  or 
next  of  kin  of  an  intestate  may  permit 
the  public  administrator  to  take  or  con- 
tinue in  the  trust;  such  officer  being  a 
most  fit  representative  of  non-residents 
interested  who  are  poor  and  ignorant, 
if  the  estate  will  not  bear  great  expense. 
(5)  The  public  administrator,  further- 


more, has  an  interest,  from  his  official 
character,  to  oppose  the  claims  of  all  pre- 
tended kindred  or  spouses;  and  as 
amicus  curue,  and  acting  on  behalf  of 
the  State  and  absentees,  he  should  take 
heed,  as  a  public  officer,  that  no  false 
claimant  procures  the  estate  or  its  sur- 
plus, and  that  no  one  administers  at  all 
without  furnishing  to  the  court  an  ad- 
equate bond,  in  order  that  the  rights  of 
all  interested  in  the  estate  may  be  prop- 
erly protected.  And  it  is  only  when  a 
person  shown  lawfully  entitled  to  admin- 
ister, or  an  executor  who  has  proved  a 
bond  fide  last  will,  qualifies  by  furnish- 
ing a  sufficient  bond,  that  the  prudent 
vigilance  of  this  officer  should  cease. 

The  legislation  regarding  public  ad- 
ministrators, and  particularly  that  of 
Massachusetts,  appears  to  justify  the  fore- 
going statement;  though  judicial  exposi- 
tion, of  course,  is  wanting,  ancl  may  long 
be.  Mass.  Pub.  Stats,  c.  131 ;  ib.  c.  130, 
§  i;  Cleveland  v.  Quilty,  128  Mass.  578. 

In  various  States  the  sheriff  of  the 
county  or  the  clerk  of  the  county  courts 
is  designated  as  virtual  public  adminis- 
trator, and  if  no  one  else  can  be  found 
competent  or  willing,  may  be  even  com- 
pelled to  take  the  trust.  Johnson  v.  Ta- 
tum,  20  Ga.  775;  Scarce  v.  Page,  12  B. 
Mon.  (Ky.)  31 1;  Williamson  if.  Fur- 
bush,  31  Ark.  539;  Hutcheson  v. 
Priddy,  12  Gratt.  85.  A  grant  to  the 
sheriff  expires  with  his  term  of  office. 
71  Ala.  504.  But  a  public  administra- 
tor who  takes  out  letters  is  a  general  ad- 
ministrator of  the  estate.  2  Dem.  650. 
In  New  York  the  commissioners  of  em- 
igration are  also  empowered  to  act  in 
certain  cases  where  foreigners  die  in- 
testate on  the  passage.  Commissioners, 
Ex  parte,  i  Bradf.  (N.  Y.)  259.  And, 
outside  of  the  city  of  New  York,  the 
county  treasurers  may  exercise  func- 
tions. Ward,  Ke,  i  Redf.  (N.  Y.) 
254. 

55 


§117  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

treasury.  The  estate  administered  may,  however,  be  that 
of  a  person  leaving  a  non-resident  spouse  or  kindred,  or  of 
one,  resident  or  non-resident,  whose  kindred  and  family  are 
unknown  or  appear  to  have  died  out.  In  English  practice, 
when  a  foreigner  dies  intestate  within  the  British  dominions, 
administration  appears  to  be  granted  to  the  persons  entitled 
to  the  effects  of  the  deceased  according  to  the  law  of  his 
own  country,  unless  a  question  of  British  domicile  is  raised. ^ 
If  the  intestate  was  domiciled  abroad  or  out  of  English 
jurisdiction,  leaving  assets  in  England,  there  should  be  an 
administration  taken  in  England  as  well  as  in  the  country  of 
domicile.^  Where  a  party  entitled  to  administration  is  resi- 
dent abroad,  due  diligence  must  be  used  to  give  him  notice 
of  the  application,  before  administration  will  be  granted  to 
another  party  not  of  his  selection.^  Stat.  24  and  25  Vict. 
c.  121,  §  4,  provides  with  reference  to  all  countries  which 
reciprocate  by  treaty,  that  when  a  subject  of  a  foreign 
country  shall  die  within  the  British  dominions,  leaving  no 
person  present  who  is  rightfully  entitled  to  administer  the 
estate,  the  foreign  consul  may  administer  on  procuring  let- 
ters from  the  proper  court.* 

But  in  the  case  of  a  bastard,  or  of  any  other  person  dying 
intestate  without  leaving  lawful  kindred,  husband  or  wife, 
the  English  sovereign  is  entitled  to  the  surplus  as  last  heir; 
and  the  English  practice  has  been  to  transfer  by  letters 
patent  the  royal  claim,  with  the  reservation  of  a  tenth  part, 
whereupon  the  court  usually  grants  letters  of  administration 
to  the  patentee  as  nominee  of  the  crown.  But  whoever  may 
be  appointed  to  the  trust,  the  right  of  the  crown  by  way  of 
distribution  is  not  impaired.^  Under  the  modern  statute  15 
Vict.   c.   3,  administration  similar  to  that  of  a  public  adminis- 

1  Wms.  Exrs.  429,  430;  i  Add.  340;  Walford,  5  Moore,  P.  C.  434;  2  Cas. 
Von  Desen,  Goods  of,  43  L.  T.  532.  temp.  Lee,  394-397.  A  similar  course 
See  generally,  as  to  foreign  and  ancil-  appears  to  have  been  pursued  in  case  of 
lary  administration,  etc.,  c.  post.  forfeiture  to  the  crown,  as  for  treason, 

2  Wms.  Exrs.  430;  Attorney-General  felony,  ox  felo  de  se.  By  Stat.  t,1  &  34 
V.  Bouwens,  4  M.  &  W.  193.  Vict.  c.  23,  §  i,  such  forfeiture  is  abol- 

3  Wms.  Exrs.  429;   3  Phillim.  637.  ished ;    and   in    this   country  it   is   not 
*  Wms.  Exrs.  430.  allo\yed. 

6  Wms.     Exrs.   433,    434;     Dyke    v. 

156 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    Il8 

trator  is  recognized,  though  within  narrow  bounds  ;  for  this 
act  provides  that  administration  of  the  personal  estate  of 
intestates,  where  the  crown  is  entitled,  may  be  granted  to 
the  solicitor  of  the  treasury  as  the  crown's  nominee.  Such 
administrator  need  not  give  bonds,  but  in  other  respects 
he  is  subject  to  the  usual  obligations  and  has  the  usual  rights 
and  duties  of  an  administrator.^ 

§  1X8.  Method  and  Form  of  granting  Letters  of  Administra- 
tion.—  The  method  of  procuring  letters  of  administration  is 
quite  similar  to  that  pursued  by  executors  in  obtaining 
letters  testamentary,  but  dispensing  with  a  probate.  The 
person  claiming  administration  must  apply  by  petition  in 
writing  to  the  probate  court  having  jurisdiction  of  the  case. 
Such  petition  is  usually  filed  with  the  register  in  the  first 
instance,  whereupon  a  citation  issues,  unless  the  petitioner, 
by  the  written  assent  or  renunciation  of  all  others  equal  or 
prior  in  interest,  can  show  an  undoubted  right  to  his  immedi- 
ate appointment  ;  the  citation,  made  returnable  at  a  conven- 
ient court  day,  serves  to  notify  all  persons  interested  of  the 
proceedings  pending.  At  the  hearing  any  person  interested 
in  the  estate  may  appear  and  show  cause  for  or  against  the 
appointment  of  the  person  named  in  the  petition,  who  should 
on  his  part  be  prepared  to  show  the  facts  essential  to  the 
grant  of  letters.^  One  petitions  for  his  own  appointment  and 
cites  in  others  accordingly. 

^  Attorney-General  v.   Kohler,  9  H.  person  who  deceased  intestate,  the  time 

L.  Cas.  654.      Wms.   Exrs.    434,  435;  of  the  death,  the  place  of  last  residence. 

Canning,    Goods    of,    28    W.    R.    278.  the  name  and  residence  of  the  spouse, 

When  money  of  an  estate  has  been  paid  if  any,  and  the  names,  residences,  and 

to  the  solicitor  of  the  treasury  in  default  degree  of  kindred  of  his  next   of  kin. 

of  next  of  kin,  and  afterwards  an  appli-  If  the  next  of  kin  are  minors,  this  fact 

cant  estal)lishes  his  right  to  the  money  should   be   stated.      Other  grounds    on 

as  next  of  kin,  he  is  entitled  to  the  bal-  which  the  petitioner  bases  his  right  to 

ance,    together   with    accruing   interest,  administer  shouhl  be  alleged,    and  local 

Gosman,  /y^e,  49  L.  J.  Ch.  590.  statutes   will  suggest  what    such   state- 

2  The  petition  in  American  States  is  ments  should  be,  in  the  various  cases  of 

drawn  up  after  a  regular  form  approved  creditor,  stranger,  public  administrator, 

by  the  court,  and  usually  contained  in  a  etc.,  as  well  as  in  the  various  kinds  of 

printed  blank.     In  an  original  petition  administration  to  be  considered  hereaf- 

for  general  administration,  it  is  proper  ter.     .See  Smith's  Prob.  Pract.  75. 
to  set  forth  the  fact  of  the  death  of  the         As    to    informalities   ia   the   petition 


§    Il8  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

The  English  rule  is  that  parties  contesting  the  right  to 
administration,  before  any  grant,  must  proceed  pari  passu 
and  propound  their  several  interests.^  But  probate  proced- 
ure is  (juite  simple  in  most  parts  of  the  United  States.  The 
surrogate,  ordinary,  or  judge  of  the  probate  or  orphans'  court, 
whoever  exercises  jurisdiction  in  such  matters,  passes  upon 
the  petition  in  which  citation  was  issued,  and  upon  such 
adverse  petitions  besides  as  may  be  drawn  up  later  to  suit  the 
occasion  ;  making  the  appointment  after  a  summary  hearing 
of  all  persons  interested.  There  is  strictly  neither  plaintiff 
nor  defendant  ;  but,  of  applicants,  some  may  withdraw  and 
others  come  in  at  any  time  while  the  case  is  in  progress.^ 
When  a  petitioner  for  administration  withdraws  his  petition 
in  the  probate  court,  he  ceases  to  be  a  party  to  the  record.^ 
If  contest  arises  as  to  the  essential  facts,  such  as  pedigree, 
the  case  may  be  adjourned  from  time  to  time  ;  and  witnesses 
are  summoned  or  a  commission  issued  to  take  depositions  as 
convenience  may  require.^  Affidavits,  which  in^probate  pro- 
ceedings are  much  used,  precede  the  grant  of  administration 
both  in  England  and  American  States  ;  as,  for  instance,  an 
oath  by  the  petitioner  to  the  essential  facts  of  death  and 
intestacy  of  the  deceased,  to  the  right  or  relationship  of  the 
claimant,  the  value  of  the  estate,  or  the  proper  service  of  the 
citation.^ 

As  a  prerequisite  to  the  grant  of  administration,  a  satis- 
factory bond,  in  modern  practice,  must  usually  be  furnished 
by  the  person  selected  for  the  trust ;  which  bond  having 
been  approved  and  filed  in  the  registry  as  the  law  directs, 
letters  of  administration  issue  to  the  person  appointed,  who 


considered  immaterial,  see  Abel  v.  Love,  Objection  to  a  grant,  on  the  ground  that 

17  Cal.  233;  Townsend  v.  Gordon,   19  there  are  other  kindred  preferred,  can- 

Cal.    188.     A  petition   not  showing  on  not  be  taken  by  a  stranger.     Burton  v. 

its  face  that  it  is  made  by  a  person  in-  Waples,  4  Harr.  73;    56  Ca.  146. 

terestcd   as  the  statute  requires  should  ^  Miller  v.  Keith,  26  Miss.  166. 

be  dismissed.     Shipman  v.  Butterfield,  *  See  Ferrie  v.  Public  Administrator,  3 

47  Mich.  487.  Bradf.  151. 

1  I  Phillim.  459;    Wms.  Exrs.  425.  ^  See  Wms.  Exrs.  454,  as  to  the  ad- 

2  Delorme  v.  Pease,  19  Ga.  220.  Ap-  ministrator's  oath.  And  see  Torrance 
plicani  who  is  resisted,  allowed  to  open  v.  McDougald,  12  Ga.  526;  Gillett  v. 
ami  cl()S2.     Weeks  v.  Sego,  9  Ga.   199.  Needham,  37  Mich.  143. 

158 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS. 


Ilg 


may  proceed  forthwith  in  the  execution  of  his  trust  unless 
an  appeal  is  taken  from  the  probate  court. ^  Administration 
should  never  be  granted  by  parol,  but  entered  as  of  judicial 
record,  and  preserved  at  the  registry  of  probate  where  the 
bond  and  other  papers  relative  to  the  case  are  kept ;  letters 
duly  authenticated  under  the  seal  of  the  court  being  fur- 
nished to  the  qualified  administrator,  and  certificates  of  the 
appointment  supplied  by  the  register,  from  time  to  time  as 
occasion  may  require.^ 


1  Probate  bonds,  as  well  as  appeals 
from  the  probate  court,  are  considered 
in  c.  5,  post.  Letters  should  usually  be 
granted  at  the  next  term  of  the  court  suc- 
ceeding the  publication  of  the  citation, 
unless  the  petition  is  regularly  continued. 
McGhee  v.  Ragan,  9  Ga.  135.  As  to  issu- 
ing letters  in  term  time,  see  67  Iowa,  316. 

A  grant  of  administration  is  primd 
facie  evidence  of  all  precedent  facts  es- 
sential to  jurisdiction;  and. the  record 
need  not  affirmatively  show  the  superior 
qualifications  of  the  person  appointed 
over  the  contesting  applicant.  Davis  v. 
Swearingen,  56  Ala.  31.  As  to  the  form 
of  letters,  see  Witsel  v.  Pierce,  22  Ga. 
112;  Wms.  Exrs.  452;  Smith's  Prob. 
Pract.  (Mass.)  Appendix.  "  Adminis- 
tration on  the  estate  of  A.  granted  to  B., 
he  giving  bond,"  is  an  unconditional 
grant  of  administration,  the  bond  being 
filed  as  of  the  same  date.  Haskins  v. 
Miller,  2  Dev.  L.  360;  Tucker  v.  Har- 
ris, 13  Ga.  I.  And,  see  further.  Post  v. 
Caulk,  3  Mo.  35;  Davis  v.  Stevens,  10 
La.  Ann.  496;  Pleasants  v.  Dunkin,  47 
Tex.  343. 

In  cases  of  certain  officials,  such  as 
public  administrator,  a  general  bond  is 
given;  and  an  order  to  administer  will 
sometimes  issue  by  way  of  a  sufficiently 
valid  appointment,  though  this  mode  is 
not  usual.  See  Thompson  v.  Bondu- 
rant,  15  Ala.  346;  Russell  v.  Erwin,  41 
Ala.   292. 

■^  Wms.  Exrs.  452.  In  this  country, 
the  person  appointed  administrator 
sometimes  leaves  his  letters  lying  in  the 
registry,  having  no  occasion  to  exhibit 

I 


them  as  credentials.  If  he  has  been 
duly  appointed  and  qualified,  however, 
the  probate  records  show  this,  and  the 
grant  of  administration  doubtless  takes 
effect  without  delivery  of  the  letters 
from  the  registry. 

If  the  law  has  prescribed  no  specific 
form  in  which  the  appointments  of  ad- 
ministrators are  to  be  made,  effect  must 
be  given  to  the  act  of  the  probate  judge 
who  signs  a  certificate  of  appointment, 
although  it  may  not  be  expressed  in  the 
usual  form  and  manner.  Carlon,  Suc- 
cession of,  26  La.  Ann.  329.  As  to 
dispensing  with  the  judge's  signature, 
see  85  N.  C.  258.  The  decree  of  the 
probate  court  is  often  expressed  as  ap- 
pointing the  applicant,  "  he  giving  bond 
with  sufficient  sureties,"  etc.  The  effect 
of  this  appears  to  be  that  the  signing  of 
such  decree  does  not  per  se  complete 
the  appointment;  but  the  condition 
must  first  be  complied  with,  and  the 
intimation  is  that  only  upon  formal  ap- 
proval of  the  bond,  whereupon  letters 
under  seal  issue,  shall  the  appointment 
take  full  effect.  The  rule  is  to  date 
decree,  bond,  and  letters  all  on  the 
same  day.  See  next  c.  as  to  qualifying 
by  bond;   also  preceding  note. 

A  grant  which  includes  two  estates 
under  one  administration  is  held  not  to 
be  void.  Grande  v.  llerrera,  15  Tex. 
533.  But  such  a  grant  would  certainly 
be  thought  irregular  and  highly  objec- 
tionable in  probate  practice.  Letters 
of  administration  are  not  void  because 
the  seal  of  the  court  is  affixed  in  the 
wrong  place.     Sharp  v.  Dye,  64  Cal.  9. 

59 


§    I20  EXECUTORS    AND    ADMINISTRATORS-  fPART    II. 

S  I  19.  Administrator  as  Such  must  be  appointed;  Credentials 
of  Authority. —  No  one  is  ex  officio  administrator  of  a  deceased 
person's  estate  ;  but  the  appointment  must  in  each  case  be 
made  and  letters  issued  by  the  probate  court,  before  one  can 
lawfully  assume  the  rights  and  duties  of  the  trust.  This 
general  rule  applies  to  a  sheriff,  coroner,  police  officer,  or 
whoever  else  may  come  into  the  charge  and  temporary  cus- 
tody of  the  effects  of  a  deceased  person;^  and,  subject  to 
statute  qualifications  already  noted,  the  same  holds  true  of 
public  administrators.^  The  proper  evidence  that  one  is  an 
administrator  is  the  letters  of  administration,  or  a  certified 
copy  thereof,  under  the  seal  of  the  court. ^  And  the  posses- 
sion of  such  letters  by  the  person  in  whose  favor  the  grant 
runs  is  prima  facie  proof  that  they  were  duly  granted  and 
delivered.* 

§  1 20.  In  -V7hat  Cases  Administration  may  be  dispensed  Tvith. 
—  Subject  to  convenient  rules  of  limitation  as  to  time,  such 
as  we  have  already  noticed,  administration  is  always  desirable 
for  the  settlement  of  intestate  estates  not  trivial  in  amount. 
Nor  does  American  policy  so  much  dispense  with  the  judicial 
formalities  as  it  renders  the  judicial  procedure  as  simple  and 
inexpensive  as  possible.  The  custody  of  the  law  must,  in  this 
instance,  be  regarded  as  a  custody  for  the  benefit  of  all  parties 
interested ;  and  whether  citizen  or  stranger,  the  estate  of 
every  person  who  dies  capable  of  acquiring  and  transmitting 
property  should  be  subjected  to  this  process,  for  a  due  collec- 
tion of  effects,  settlement,  and  distribution.  In  no  legal  sense 
can  heir,  next  of  kin,  or  creditor,  be  regarded  as  the  represen- 
tative of  the  deceased  or  successor  in  title,  unless  administra- 
tion has  been  committed  to  him.^  Nor  can  one  portion  of 
the  kindred  sue  another  portion  in  matters  pertaining  to  an 

1  Wilson    V.    Dibble,    16    Fla.    782;     Stevens,    lo    La.   Ann.   496;    Tuck    v. 
Williamson  v.  Furbush,  31  Ark.  539.  Boone,  8  Gill,  187;   Moreland  v.  Law- 

2  Supra,  §  117;  Hamilton,  Matter  of,     rence,  23  Minn.  84. 

34  Cal.  464;   Thomas  v.  Adams,  10  111.  ^  McNair  v.  Dodge,  7  Mo.  479. 

319.  5  Bartlett  v.  Hyde,  3  Mo.  490;   Alex- 

8  Davis  V.  Shuler,   14  Fla.  438;    Al-  ander  v.  Barfield,  6  Tex.  400. 
bright  V.  Cobb,  30  Mich.  355;   Davis  v. 

160 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 20 

intestate's  estate,  without  the  medium  of  an  administrator  for 
the  court  to  recognize.^  Creditors  of  the  deceased  intestate 
who  have  occasion  to  press  their  claims  or  to  re-open  the 
transactions  of  his  life ;  parties  in  interest,  too,  who  may 
wish  to  collect  a  claim  or  quiet  a  title  on  behalf  of  the  estate  ; 
these  all  need  administration  as  a  step  preliminary  to  invok- 
ing legal  process  in  other  courts.^  A  person  exxlusively 
entitled  to  the  estate  must  get  such  credentials  of  authority 
before  he  can  sue  others  for  what  belongs  to  the  estate.^ 
Distributees  cannot  obtain  their  distributive  shares,  nor  ascer- 
tain what  those  shares  should  be,  without  such  a  representa- 
tive ;  and  it  is  against  sound  policy  to  permit  an  action  to  be 
sustained  upon  any  promise  to  settle  and  pay  over  the  dis- 
tributive shares  without  taking  out  letters.^  Where,  in  fact, 
the  next  of  kin  and  heirs-at-law  have  taken  possession  of  the 
estate  of  a  deceased  person  and  held  it  for  many  years,  divid- 
ing it  and  exercising  other  acts  of  ownership,  they  may  never- 
theless be  held  accountable  for  the  whole  property  to  an 
administrator  regularly  appointed  afterwards  ;  and  a  court  of 
equity  will  not,  at  their  instance,  restrain  him  from  recovering 
the  assets  in  an  action  at  law.^ 

^  Davidson  v.  Potts,  7  Ired.  Eq.  272;  may  acquire  and  transmit  title  to  per- 

Miller  v.  Eatman,  1 1  Ala.  609.  sonal  property.     As  to  free  persons  of 

^See  Bowdoinz/.  Holland,  loCush.  17.  color,  see  Scranton    v.    Demere,  6  Ga. 

^  Bradford     v.     Felder,     2    McCord  92.     But  as  to  a  deceased  Indian  not 

(S.  C.)  Ch.  168;  Cochran  v.  Thompson,  taxed,  see  Dole  v.   Irish,  2  Barb.  639. 

18  Tex.  652.  An  infant  may  die  entitled  to  property 

*  Marshall  v.  King,  24  Miss.  85  ;  in  his  own  right,  so  that  administration 
Allen  V.  Simons,  i  Curtis,  124;  Sharp  of  the  estate  becomes  requisite.  Miller 
V.  Farmer,  2  Dev.  &  B.  122.  There  v.  Eastman,  11  Ala.  609;  Wheeler  v. 
being  no  legal  administrator,  a  creditor  St.  Joseph  R.,  31  Kan.  640.  Cf.  Cobb  v. 
of  the  intestate  cannot  ask  a  court  of  Brown,  Speer's  Eq.  564.  And  although 
equity  to  appoint  a  receiver  to  adminis-  the  status  of  the  wife  at  common  law 
ter.     Walker  v.  Drew,  20  Fla.  908.  forbade  her  to  acquire  personal   prop- 

*  Whit  V.  Ray,  4  Ired.  14;  Carter  v.  erty  in  her  own  right,  and  the  husband 
Greenwood,  5  Jones  Eq.  410;  Echols  has  been  said  to  administer  for  his  own 
V.  Barrett,  6  Geo.  443;  Eisenbise  v.  benefit,  if  he  administers  at  all,  tlie 
Eisenhise,  4  Watts,  134.  And  see  modern  tendency  is  to  require  admin- 
Weeks  V.  Jewett,  45  N.  H.  540;  Wil-  istration  in  all  cases  where  a  married 
kinson  v.  Perrin,  7  Monr.  217.  woman    having  a  separate    estate    dies 

Rarely,  if  ever,  can  exception  be  as-  intestate.    Schoul.  1 1  us.  &  Wife,  §§  408, 

serted  at  this  day  because  of  incapacity  409;    Holmes  v.   Holmes,  28  V't.   765; 

in  the  intestate.     American  law  recog-  Patterson    v.    High,    8    Ired.    Eq.     52; 

nizes  neither  slaves  nor  outlaws;  but  all  sti/^ra,  §  98. 

161 


S    120  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

There  are,  however,  as  we  have  observed,  statute  limita- 
tions to  the  grant  of  original  administration  ;  the  bounds  set 
being,  on  sound  principle,  those  usually  fixed  for  quieting 
titles  and  checking  litigation.^  So  there  may  be  limitations 
of  value,  lest  trifling  estates  be  frittered  away  in  the  course  of 
a  needless  settlement.^  Moreover,  it  is  held  competent  for 
all  the  heirs  and  kindred  of  a  deceased  person,  if  they  be  of 
age,  to  settle  and  pay  the  debts  of  the  estate,  and  divide  the 
property  fairly  among  themselves,  without  the  intervention 
of  an  administrator  ;  for  in  such  a  case  the  rights  of  no  one 
are  prejudiced.^  Such  settlement  and  division  would  not, 
however,  be  in  strict  compliance  with  the  law,  and,  if  made 
unfairly,  or  in  disregard  of  the  rights  of  some  party  in  inter- 
est, it  might  be  avoided  afterwards  through  the  intervention 
of  a  legal  administrator.*  Other  instances  are  found  where 
courts  disincline  to  appoint  an  administrator  unnecessarily,  or 
to  permit  one  already  appointed  to  overthrow  the  reasonable 
transactions  of  distributees  with  reference  to  the  estate,  for 
the  mere  sake  of  asserting  his  own  lawful  authority.^ 

1  Supra,  §  94.  Cf.  Foster  v.  Com-  3  Taylor  z/.  Phillips,  30  Vt.  238;  Bab- 
monwealth,  35  Penn.  St.  148;  Pinney  bit  z^.  Brown,  32  Vt.  437;  Henderson  t'. 
V.  McGregory,  I02  Mass.  89.  Twenty  Clarke,  27  Miss.  436;  Needham  v.  Gil- 
years  is  the  Massachusetts  limit.  lb.  lett,  39  Mich.  574.  Under  the  peculiar 
After  a  long  adverse  possession  of  per-  practice  of  Louisana,  this  course  is  some- 
sonalty,  equity  will  presume  a  former  times  followed.  29  La.  Ann.  347; 
administration  to  protect  the  rights  of  Welch's  Succession,  36  La.  Ann.  702. 
bo7id  fide  purchasers.  Woodfolk  v.  *  Hibbard  v.  Kent,  15  N.  H.  516; 
Beatly,   18  Ga.  520.  Clarke  v.  Clay,  31   N.  H.  393 

'■^  Estates    less    than    twenty    dollars  ^  Thus,  in  Alabama,  a  court  of  equity 

need  not,   in   Maine,    be    administered  may    decree    distribution    direct,    when 

upon.      Bean  v.  Bumpus,  22  Me.   549.  administration,  if  granted,  could  be  for 

In  Massachusetts  no  such  general  limit  no    other    purpose.       Fretwell    v.    Mc- 

of  value  is  placed;    Pinney  z^.  McGregor,  Lemore,   52  Ala.    124.     And,  in  Penn- 

102  Mass.  89;    but  public  administrators  sylvania,  an  administrator  was  not  per- 

are  empowered  to  collect  and  pay  over  mitted    to    disturb    a    sale    of   personal 

to  the  State  treasurer  without  taking  out  property  made  before  his  appointment 

letters  for  estates  so  small.     Pub.  Stats,  by  the   widow   and   kindred,   where   he 

Mass.  c.  131,  §  18.     In  Indiana,  estates  could  not  show  debts  or  any  good  cause 

worth  less  than  $300  are  to  be  invento-  for   re-opening  the  transaction.      Wal- 

ried,  appraised,  and  settled  without  an  worth  v.  Abel,  52  Penn.  St.   370.     For 

administrator.     Pace  v.  Oppenheim,  12  an  administrator  can  proceed  both  pru- 

Ind.  533.     Should  an  estate  turn  out  to  dently  and  with  delicacy  by  charging  off 

be  of  the  full  statute  value,  letters  ought  the  proceeds  to  the  shares  of  widow  and 

afterwards  to  be  procured.  kindred  in  his  accounts. 

162 


CHAP.    III.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 20 

Statutes  specially  dispense  with  letters  of  administration  in 
various  instances ;  and  particularly  where  the  balance  of  pay 
due  some  public  servant  is  to  be  settled  by  government,  or  the 
bounties,  prize-money,  or  pensions  of  soldiers  and  sailors  re- 
main to  be  adjusted.  For  the  public  interest  is  often  thought 
to  be  best  subserved  in  such  cases  by  dealing  directly  with 
widows,  orphans,  and  other  next  of  kin,  through  the  E.xecu- 
tive ;  to  the  utter  exclusion,  if  need  be,  of  the  intestate's 
creditors,  and  the  avoidance  of  controversies  in  probate  court 
over  the  locus  of  assets  or  of  the  decedent's  last  domicile.^ 

*  For  English  statutes  concerning  ad-  navy  acts  make  frequent  provisions  for 

ministration  of  the  effects  of  intestate  a   pecuHar   distribution  and  settlement 

seamen,  marines,  and  soldiers,  see  Wms.  through  the  auditors  of  the  treasury. 
£xrs.  455-460.    United  States  army  and 

163 


EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 


CHAPTER    IV. 

APPOINTMENT    OF    ADMINISTRATORS    NOT    ORIGINAL    AND 
GENERAL. 

§  121.  Administration  is  not  always  Original  or  General.  — 
Since  administration  in  our  law  fulfils  every  purpose  of  set- 
tling estates  where  no  executor  serves,  it  follows  that  the 
grant  cannot  always  be  both  original  and  general,  as  consid- 
ered in  the  preceding  chapter.  On  the  contrary,  there  remain 
several  kinds  of  administration,  all  of  a  special  and  limited 
nature,  to  be  stated,  and  all  fully  recognized  in  probate  prac- 
tice, English  and  American.  These  may  be  enumerated  in 
order,  as  chiefly:  (i)  administration  with  the  will  annexed 
{cum  tcstaineiito  anncxo)  ;  (2)  administration  of  personalty  not 
already  administered  {de  bonis  noii)  ;  (3)  temporary  adminis- 
tration, as  for  instance,  during  minority  {durante  ininore 
(Btatc)  ;  (4)  and  special  administration  for  limited  and  special 
purposes  {ad  colligendum,  etc.).  The  Latin  idiom  admits  of 
other  names  and  classes ;  not  to  speak  of  ancillary  adminis- 
tration, whose  discussion  belongs  to  a  later  chapter,  as  con- 
trasted with  the  principal  or  domiciliary  administration. 

§  122.  Administration  -with  the  "Will  annexed  (cum  testamento 
annexo) ;  When  granted  and  how.  —  In  various  instances  ad- 
ministration should  be  granted  of  testate  estates  ;  as  where 
the  decedent  omitted  in  his  will  to  name  an  executor,  or  where 
the  executor  or  executors  named  are  all  found  dead  or  incom- 
petent to  act  when  the  will  is  to  be  presented  for  probate,  or 
where  the  executor  refuses  the  trust,  or  neglects  to  appear 
and  qualify  as  the  statute  directs.  Here  the  court  must  grant 
an  administration,  while  giving  the  will  its  due  operation  as 
far  as  possible,  and  admitting  it  to  probate  ;  and  this  sort  of 
grant  is  known  as  administration  with  the  will  annexed.^ 

^  See  2  Inst.;    Mass.  Gen.   Stats,   c.     Vicksburg,  2  Miss.  379;  Tuttle  w.  Tur- 
94,  §§  6,  7;    Wms.  Exrs.  461;    Peebles     ner,  8  Jones  L.  403. 
V.  Watts,  9  Dana  (Ky.)    102;   Vick  v. 

164 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 23 

The  will  should,  of  course,  be  presented  for  probate,  even 
though  there  be  no  executor  to  serve  under  it  ;  and,  in  de- 
fault of  an  executor,  the  person  applying  to  be  ajDpointed 
administrator  with  the  will  annexed  takes  usually  the  burden 
of  probate,  petitioning  after  the  same  form  as  an  executor, 
but  alleging  the  special  circumstances,  besides,  under  which 
he  claims  the  appointment.  Letters  of  administration  with 
the  will  annexed  should  not  be  granted  unless  the  exigency 
is  made  apparent ;  executors,  if  aliv^e  and  competent,  should 
have  full  opportunity  to  take  or  renounce  the  trust  ;  any 
renunciation  on  their  part  should  be  made  in  proper  form  ; 
and  if,  out  of  several  executors  named,  one  is  willing  and 
competent  to  serve,  such  administration  is  not  to  be  granted.^ 
When  granted  upon  proof  of  the  will  in  common  form,  such 
administrator  may  be  called  upon,  like  any  executor,  to  prove 
the  will  afterwards  in  solemn  form  ;  and  renunciation  of  this 
trust  in  one's  favor  is  not  necessarily  renunciation  of  the 
right  to  contest  probate.^  Pending  an  appeal  from  probate 
of  the  will,  a  petition  for  such  administration  cannot  be 
allowed.^ 

§  123.  Administration  ■with  the  Will  annexed;  Functions  of 
the  Office.  —  The  functions  of  administrator  with  the  will 
annexed  are,  in  general,  those  of  executor  ;  for  the  probate 
court  makes  him  pilot  by  substitution,  to  steer  like  an 
executor  by  the  chart  which  the  deceased  has  left  behind. 
His  letters  are  worded  to  fit  the  case ;  but  he  qualifies  sub- 
stantially as  an  administrator.^  A  will  is  not  vitiated  by  the 
failure  of  executors  to  carry  out  its  provisions  ;  and  the  full 
appointment   of   an  administrator  with  the  will  annexed  as- 

1  Wms.  Exrs.  281,  283,  461 ;   Stebbins  object  to  such  a  grant,  see  Cox  v.  Cox, 

V.  Lathrop,  4  Pick.  33;   Maxwell,  Re,  3  16  Miss.  292. 

N.  J.  Eq.  611;   supra,  §  44;   Springs  v.  ^  Wms.  Exrs.  337;   2  Cas.  temp.  Lee, 

Irwin,  6  Ired.  L.  27.     If  there  are  sev-  241. 

eral  executors,  all  must  duly  renounce  ^  Fisher,  Re,  15  Wis.  511. 

before  administration  with  the  will  an-  *  Wms.  Exrs.  470;  next  c.      By  the 

nexed  can   be  granted.       I    Roll.  Abr.  better  practice,  the  judicial  record  should 

907,  pi.  6.     But  as  to  Mississippi  prac-  show  that  there  was  cause  for  granting 

tice,  when    the   executor  named  was  a  such  administration.      But  see  Peebles 

non-resident    and    did    not   seasonably  z'.  Watts,  9  Dana,  202.     See  also  Gies- 

sen  V.  Bridgford,  83  N.  Y.  348. 

i6s 


§125  EXECUTORS    AND    AnMINISTRATORS.  [PART    II. 

sumes,  though  not  perhaps  conclusively,  that  the  court  has 
in  point  of  fact,  admitted  the  will  to  probate.^ 

§  124.  Administration  with  the  Will  annexed  ;  to  whom 
granted;  Residuary  Legatee.  —  The  rule,  when  uncontrolled  by 
statute,  is  to  grant  administration  with  the  will  annexed  to 
the  claimant  having  the  greatest  interest  under  the  will,  for 
which  reason  the  residuary  legatee  is  preferred  to  mere  next 
of  kin.  And  statute  21  Hen.  VIII.  has  accordingly  been 
construed,  in  English  courts,  as  admitting  of  such  an  excep- 
tion to  the  rule  of  administration,  forasmuch  as  that  statute 
conforms,  in  its  spirit,  to  the  presumed  last  wishes  of  the 
deceased.^  Of  two  or  more  residuary  legatees,  any  of  them 
may  be  taken  as  the  court  may  see  fit  to  select.^  And 
though  the  estate  be  such  that  the  residuary  legatee  is  not 
likely  to  have  a  residue,  or  by  the  terms  of  the  will  must  hold 
that  residue  with  limitations,  the  presumption  of  the  testator's 
favor  upholds  his  claim,  nevertheless,  to  be  appjointed.*  He 
is  preferred,  not  only  to  next  of  kin,  but  to  all  other  legatees 
under  the  will  besides  ;  and  if  he  die  after  the  testator,  and 
before  obtaining  letters,  his  personal  representative  takes 
precedence  in  his  right  to  the  fullest  extent.^ 

§  125.  Administration  with  the  Will  annexed;  Appointment 
of   Next    of   Kin. —  So    far,  however,  from  having  any  legal 

^  Lackland    v.     Stevenson,    54    Mo.  be    issued    to    the    guardian    of    any 

108.  infant  who,  but  for  his  infancy,  would 

2  I   Ventr.    219,  per  curiatn  :    Wms.  be  entitled  to  them.    4  Dem.  297. 
Exrs.  463,  464;    Atkinson  v.  Barnard,         *  Hutchinson  w.  Lambert,  3  Add.  27; 

2  PhilHm.  318.  Atkinson    7a   Barnard,   2   Phillim.    316. 

"^  Taylor  v.  Shore,  2  Jones,  162.     See  But  where  one  is  made  a  mere  trustee 

Wms.  Exrs.  467.     All  who  are  immedi-  of  the  residue  it  is  otherwise.     2  Cas. 

ately   and   ultimately  interested  in  the  temp.   Lee,  243,  294,   327;    Ditchfield, 

fund  created  by  the  will  may  be  classed  Goods  of,  L.  R.  2  P.  &  D.  152.     Where 

together  as  "  principal  or  specified  lega-  a  residuary  legacy  is  given  to  a  trustee 

tees,"  from  whom  the  statute  choice  is  to  be  paid   over,   the   cestui  que  trust, 

to  be  made.     5  Dem.  (N.  Y.)   128;   4  not  the   trustee,   should   be  appointed. 

Dem.    168.      The    testator's    expressed  Thompson's  Estate,  ■},},  Barb.  334. 
wish    as  between    two    persons    having         ^  Wms.  Exrs.  464,  465 ;    Jones  v.  Bcy- 

equal  rights  is  entitled  to  some  weight,  tagh,  3  Phillim.  635 ;  Wetdrill  v.  Wright, 

5    Dem.    (N.     Y.)    281.      Under    the  2   Phillim.   243;    6  Notes    of   Cas.  44. 

New    York   statute,  such    letters    must  Aliter,  as  suggested  above,  where   the 

166 


CHAP.    I  V.J        APPOINTMENT    OF    ADMINISTRATORS.  §    126 

right  to  the  grant  of  such  letters,  the  residuary  legatee  could 
not  compel  the  selection  of  himself  by  mandamus ;  but  the 
English  spiritual  court  thus  proceeded  at  its  own  discretion.^ 
But  if  the  residuary  legatee  was  also  next  of  kin  (saving  the 
rights  of  husband  or  widow  surviving)  practice  and  statute 
united  in  his  favor,  and  the  court  could  not  pass  him  over.'' 
Upon  the  refusal  or  inability  of  the  residuary  legatee  to  fill 
the  vacancy  under  the  will,  administration  with  the  will  an- 
nexed has  been  granted  most  commonly  to  the  next  of  kin  ; 
though  the  English  practice  is  to  refuse  such  administration 
where  the  next  of  kin  takes  under  the  will  no  beneficial  inter- 
est.^ Administration  may  be  granted  to  next  of  kin  where 
the  will  contains  no  clear  disposition  of  the  residue.*  Where 
residuary  estate  is  held  in  trust,  the  beneficiary  of  the  trust 
should  be  preferred  to  the  trustee.^ 

§  1 26.  Administration  -with  the  "Will  annexed  ;  Surviving 
Spouse's  Right  considered.  — Where  a  wife  makes  a  lawful  will, 
but  appoints  no  executor,  or  names  one  without  any  right  to 
do  so,  her  surviving  husband's  right  has  been  variously  con- 
strued ;  but  it  would  appear  that  the  grant  of  letters  is 
discretionary  in  the  court  according  to  the  circumstances. 
One  of  these  circumstances  is  the  lawful  interest  acquired 
under  such  a  will ;  another,  whether,  apart  from  such  inter- 
est, the  wife  had  a  right  to  constitute  any  executor  other  than 
her  husband.^  As  to  the  wife's  partial  disposition  rightfully 
made,  the  rule  appears  to  be  to  respect  her  wishes,  or  those 
of  the  parties  in  interest,  and  to  grant  an  administration  with 
the  will  annexed  accordingly,  where  there  can  be  no  execu- 

so-called    residuary   legatee    is   a    mere  kin  has  a  preference  over  any  creditor. 

trustee  under  the  will.     Hutchinson  z'.  Little   v.  Berry,    94   N.  C.    433.     The 

Lambert,  3  Add.  27;    Ditchfield,  Goods  case    of    a    non-resident    testator    who 

of,  L.  R.  2  P.  &  D.  152.  leaves    local    property    is    not    within 

1  2  Stra.  956;    Wms.  Exrs.  465.  the  statute.     49  Conn.  411.    A  claimant 

-  2  Cas.  temp.  Lee,  414.  under  a  contract  with  executor  is    not 

•^  Wins.     Exrs.    466  ;     Kooystra    v.  a    "creditor"    in  the  statute  sense.      I 

Buyskes,  3  Phillim.  531.  Dem.  (N.  V.)  240. 

*  Aston,  Goods  of,    L.    R.  6    P.    D.         "^  Dr.    Lushington    in    Brenchley    v. 

203.  Lynn,  2  Robert.  441  ;   Bailey,  Goods  of, 

"  5  Dem.  (N.  Y.)  523.     The  next  of  2  .Sw.  &  Tr.   135;    Salmon  v.   I  lavs,  4 

Ilagg.  386. 

167 


§    12/  EXECUTORS    AND    ADMINISTRATORS.  [PART    II, 

tor;  but  limitinj^  the  grant  thus,  to  decree  an  administration 
cateronini  bojioniin  to  her  husband.^  On  the  whole,  the 
husband's  right  to  administer  is  favored  in  England  and  the 
United  States,  save  so  far  as  the  wife  may  have  lawfully  con- 
trolled it  by  her  own  testamentary  disposition. ^ 

What  has  been  said  of  the  widow's  general  right  to  admin- 
ister on  the  estate  of  her  deceased  husband  may  suffice  for 
establishing  her  precedence  over  the  next  of  kin,  or  statute 
equality  with  them,  wherever  occasion  arises  for  granting 
administration  with  the  will  annexed,  of  such  estate.^  Where 
under  the  will  the  largest  or  the  residuary  beneficiary  is  the 
surviving  spouse,  all  the  greater  becomes  the  right  to  be 
appointed.^ 

§  127.  Administration  with  the  Will  annexed;  Executor's 
Rights. — If  there  be  an  executor  living  and  competent,  his 
paramount  rights  must  be  respected.  And  any  order  of 
court  which  grants  administration  with  the  will  annexed  to 
another  before  the  executor  has  formally  renounced  the 
trust  is  voidable  upon  his  application  made  in  due  time.^ 
Logically  speaking,  an  executor  ought  not  to  be  allowed  to 
take  out  administration  with  the  will  annexed  ;  ^  but  there 
are  cases  in  which  an  individual  may  be  considered  entitled 
to  such  grant,  after  renouncing  the  claim  of  executor.  Thus, 
it  is  held  in  Missouri  that  an  executor,  whose  appointment 
as  such  was  avoided  by  his  being  an  attesting  witness,  may 
nevertheless  be  appointed  administrator  with  the  will  an- 
nexed.' In  England,  recently,  a  similar  grant  was  made  to 
a  husband  who  was  made  sole  executor  and  universal  legatee 
under  his  wife's  will,  and  who,  after  having  renounced  in  the 

'  2  Cas.  temp.  Lee,  537.  ^  Baldwin    v.   Buford,    4    Yevg.    16; 

2  Wins.  Exrs.  415,416;    Schoul.  Hus.  Thompson  v.  Meek,  7  Leigh,  419.     But 

&  Wife,    §§    45 7-470, /«5.f?w  /    supra,  the  executor  cannot  formally  renounce, 

§  98.     Schoul.  Wills,  Part  II.,  c.  3.  and  claim  his  right  after  administration 

^  Supra,  §  99.     Semble,  by  English  with  the  will  annexed  has  been  granted, 

practice,    that,   following  the  intent    of  Wms.  Exrs.  284;    Add.  273. 

the  will,  administration  "  during  widow-  ^  Wms.  Exrs.  470,  citing  English  rules 

hood"   may  be    the   proper    limitation,  of  court, which  preclude  a  per.son  entitled 

Wms.   Exrs.   463,  «.;    7  Notes  of  Cas.  to  a  grant  in  a  superior   character  from 

684.  taking  it  in  an  inferior. 

*  See  Long  v.  Huggins,  72  Ga.  776.  "^  Murphy  v.  Murphy,  24  Mo.  526. 

168 


CHAP.   IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    128 

probate,  desired  afterwards  to  prove  the  will.^  And  a  widow 
appointed  sole  executrix  has  been  permitted  to  decline  that 
responsible  trust,  and  afterwards  serve  as  administratrix 
with  the  will  annexed,  in  connection  with  another  admin- 
istrator.2 

When  an  executor  resides  abroad,  rules  of  non-residence 
apply,  such  as  we  have  already  considered  ;  non-residence 
does  not  essentially  disqualify,  but  in  English  practice  the 
executor,  by  a  power  of  attorney  revocable  at  pleasure,  may 
have  another  appointed  administrator  with  the  will  annexed.' 

§  128.  Administration  of  Personalty  not  already  adminis- 
tered (de  bonis  non) ;  vrhen  granted,  etc.  — The  general  jDrinci- 
ple  of  administration  de  bonis  71071  is  that  this  grant  shall  be 
made  where  a  vacancy  must  be  filled  by  the  court  while  the 
estate  remains  incompletely  settled.  Hence  the  grant  is 
made  under  either  of  two  aspects:  (i)  where  there  was  a 
will,  or  {2)  where  there  was  no  will.  In  the  former  instance 
letters  testamentary,  as  we  have  seen,  hold  good  so  long  as 
one  or  two  more  executors  survives  to  fulfil  the  trust,  and 
holds  his  office ;  and  where,  on  the  other  hand,  there  was  nO' 
executor  at  the  time  of  probate,  the  original  appointment 
becomes  that  of  administrator  with  the  will  annexed.  In 
the  latter  instance  the  vacancy  created  is  that  of  sole  original 
administrator.  Failing  the  original  office,  therefore,  under  a 
will,  administration  de  bo7iis  71071  with  the  will  annexed  is 
proper ;  but  failing  the  original  office,  where  there  was  no 
will,  administration  de  bo7iis  71071  simply.  In  modern  prac- 
tice, to   render   any  grant  de   bo7iis   71071   valid,  the  original 


1  Blisset,   Goods   of,   44   L.   T.    816.         2  Briscoe  v.  Wickliffe,  6  Dana,  157. 
Having   renounced   probate  in  his  ca-         ^  Supra,    §   109;    i  Cas.  temp.   Lee, 

pacity  of  executor,  his  interest,  neverthe-  402;   Bayard,  Goods  of,  i  Robert.  768; 

less,  as  universal  legatee,  supported  the  Wms.  Exrs.  468.     Administration   with 

grant    of   administration   with    the   will  will  annexed  may  be  granted  to  the  at- 

annexed.     See  Stat.  20  &  21  Vict.  c.  77,  torney  of  the  foreign  executor  in  some 

§  79,  to  the  effect  that  where  one  re-  States.  St.  Jurgo  v.  Dunscomb,  2  Bradf. 

nounces  probate  his  right  in  respect  of  (N.  Y.)  105.     Or  the  non-resiilent  ex- 

the  executorship  shall  wholly  cease,  and  ecutor  empowers  a  resident  attorney  to 

administration  be  committed    as  if   he  accept  service  of  process,    etc.     Mass. 

had  not  been  appointed.  Pub.  Stats,  c.  132. 

169 


§    128  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

office  must  be  vacant  at  the  time  by  the  death,  resignation, 
or  removal  of  the  sole  executor  or  original  administrator.^ 

Where  the  sole  executor,  whose  functions  cease,  has  not 
completed  the  administration  of  the  estate,  where  he  has  not 
paid  all  the  legacies,  satisfied  all  the  lawful  claims,  and  deliv- 
ered over  the  balance  in  his  hands  to  the  persons  entitled 
thereto,  an  administrator  de  bonis  non  with  the  will  annexed 
may  be  rightfully  appointed.^  And  the  Massachusetts  stat- 
ute is  quite  explicit  in  declaring  that  when  a  sole  executor  or 
administrator  with  the  will  annexed  dies  after  entering  upon 
the  duties  of  his  trust  and  before  it  is  discharged,  or  is 
removed  by  the  courts  or  resigns,  administration  de  bonis 
noti  with  the  will  annexed  may  be  granted;-'^  there  being,  of 
course,  occasion  for  the  appointment,  such  as  unsettled  debts 
or  unadministered  estate,  and  something  remaining  to  be 
performed  in  execution  of  the  will.  English  practice  re- 
gards, by  way  of  exception,  the  right  of  a  sole  executor  to 
transmit  the  office  to  his  own  executor ;  *  but  that  distinc- 
tion, we  have  seen,  is  not  upheld  in  most  of  the  United 
States.^ 

So,  correspondingly,  is  it  with  the  administration  of  an  in- 
testate estate.  If  a  sole  administrator  dies  before  complet- 
ing the  trust  committed  to  him,  or  is  removed  by  the  court 
or  resigns,  administration  de  bonis  non  will  be  granted,  pro- 
vided there  is  personal  property  left  unadministered  or  debts 
remaining  due  from  the  estate.^     As  with  co-executors,  how- 


1  See  Rambo  v.  Wyatt,  32  Ala.  363;  «  Mass.  Gen.  Stats,  c.  10 1,  §  1. 
Wms.  Exrs.  7th  ed.  471;  Creath  v.  *  Supra,  ^  ^y,  Wms.  Exrs.  471-473. 
Brent,  3  Dana,  129.  Under  Massachu-  See  Grant,  Goods  of,  24  W.  R.  929. 
setts  statutes,  administration  de  bonis  non  Such  a  rule  involves  a  very  nice  inquiry 
(with  or  without  the  will  annexed,  as  as  to  the  necessity  of  administration  de 
the  case  may  be)  is  proper  whenever  an  bonis  non  when  there  is  an  adminis- 
unmarried  woman,  being  sole  executor  tration  durante  minoritate  of  an  ex- 
or  administrator,  marries;  the  trust  ter-  ecutor  of  an  executor.  Wms.  Exrs. 
minatiiig  accordingly,  instead  of  vesting  473. 

in   her  husband,  as  under  the  old  law  ^  Supra,  §  43;    I  Dem.   (N.  Y.)  353. 

of   coverture.      Supra,    §   32;    Schoul.  But  see  Hart  v.  Smith,  20  Fla.  58. 

Hus.  &  Wife,  §§  163,  460.  6  Mass.  Gen.  Stats,  c.  loi,  §  i ;   2  Bl. 

2  Alexander  v.  Stewart,  8  Gill  &  J.  Com.  506;  Scott  v.  Fox,  14  Md.  388; 
226;  Brattle  I/.  Converse,  1  Root  (Conn.)  Hendricks  z/.  bnodgrass,  i  Miss.  86; 
174.  Wms.   Exrs.  474.      "Debt"    construed 

170 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS. 


5  128 


ever,  so  in  joint  administration,  the  survivor  becomes  sole 
administrator,  and  the  original  office  does  not  lapse  so  long 
as  one  remains  to  fill  it.^  The  goods  of  an  intestate  do  not 
go  to  the  legal  representative  of  a  deceased  administrator,  nor 
has  such  representative  any  preferred  right  to  the  successor- 
ship.2  The  administrator  dc  bonis  iwn  "  is  appointed,"  it  has 
been  said,  to  "finish  a  business  already  commenced  ;  and  this 
makes  the  case  different  from  that  of  a  full  and  immediate 
administrator,  whether  temporary  or  otherwise,  since  the 
present  one  is  entitled  to  all  the  personalty  which  the  former 
executor  or  administrator  has  not  converted."^ 

It  is  held  that  where,  in  consequence  of  the  death  of  a 
qualified  executor  pending  proceedings  to  test  the  validity 
of  the  will,  there  is  no  legal  representative  of  an  estate, 
the  probate  court  may  grant  letters  of  administration  de 
bonis  non,  even  while  an  appeal  from  that  cause  is  pending."* 


not  to  include  "  legacy."  Chapin  v. 
Hastings,  2  Pick.  361. 

Statute  restrictions  are  imposed,  how- 
ever, on  this  grant.  In  Massachusetts, 
unadministered  estate  or  unsettled  debts, 
upon  the  lapse  of  sole  executorship  or 
sole  administratorship,  must  be  left  to 
the  amount  of  at  least  twenty  dollars. 
Mass.  Gen.  Stats,  c.  loi,  §  i.  This  is 
for  the  purpose  evidently  of  checking 
litigious  proceedings,  and  dispensing 
with  multiplied  offices  for  trifling  estates. 
Administration  de  bonis  non  is  often 
granted  with  the  view  of  overhauling 
the  acts  and  conduct  of  some  predeces- 
sor, and  making  him,  his  bondsmen, 
and  his  personal  representatives  an- 
swerable to  dissatisfied  parties  in  inter- 
est. If  the  trust  has  been  essentially 
fulfilled  under  the  original  grant,  it  is 
thought  better  to  suffer  the  administra- 
tion to  expire. 

Notwithstanding  statute  limitations 
concerning  criffinal  administration,  it  is 
held  that  administration  de  bo7iis  non 
may  be  granted  after  the  lapse  of  twenty 
years  from  the  death  of  the  former  ad- 
ministrator. Bancroft  v.  Andrews,  6 
Cush.  493;  Holmes,  In  re,  t^t,  Me.  577. 
But  long  lapse  of  time  and  other  cir- 

I 


cumstances  favor  a  presumption  that  the 
estate  has  been  fully  settled.  Murphy 
V.  Menard,  14  Tex.  62.  And  see  San 
Roman  v.  Watson,  54  Tex.  254.  But 
the  question  is  not  merely  whether 
debts  remain  unpaid,  but  whether  the 
estate  has  been  wholly  settled  and  the 
trust  closed.  Protection  of  the  rights 
of  distributees  may  give  occasion  for 
the  appointment;  as  where  the  final 
settlement  of  a  deceased  administrator  is 
set  aside  by  the  courts.  Scott  v.  Crews,  72 
Mo.  261 ;  Byerly  v.  Donlin,  72  Mo.  270. 
And  see  Neal  v.  Charlton,  52  Md.  495. 

1  Wms.  Exrs.  474;  2  Vern.  514;  62 
Tex.  54. 

2  See  Taylor  v.  Brooks,  4  Dev.  &  B.  I, 
139;  Donaldson  v.  Raborg,  26  Md.312. 

8  Hinton  v.  Bland,  81  Va.  588,  595; 
5  Rand,  51;  Clarke  v.  Wells,  6  Gratt. 
475.  Wherever  money  is  to  be  paid  to 
the  decedent's  estate,  an  administrator /jJf 
bonis  non  is  a  necessary  party.  8i  Va. 
ib.  And  see  4  Deni.  487.  An  adminis- 
trator refused  to  bring  a  suit  on  a  cer- 
tain cause  of  action,  resigned  and  was 
discharged ;  and  administration  dc  bonis 
non  was  granted.  Merkle  v.  Benning- 
ton (Mich.),  35  N.  W.  846. 

•♦  Finn  v.  Hempstead,  24  .\rk.  in. 


^    129  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

But  it  would  have  been  better  to  defer  such  grant,  aud  as  a 
general  rule,  there  cannot  be  two  valid  grants  of  administra- 
tion subsisting  at  the  same  time  in  one  jurisdiction  upon  one 
estate ;  and  wherever  there  is  an  executor  or  administrator 
still  in  office,  with  powers  not  limited  as  to  objects  or  time, 
even  though  he  ought  to  be  removed,  the  appointment  of  an 
administrator  de  bonis  non  is  a  nullity.^  Where  the  county- 
court  of  competent  jurisdiction  in  a  State  has  granted  probate 
and  letters  testamentary,  or  administration  of  an  estate,  the 
same  court  has  jurisdiction  to  grant  administration  de  bonis 
nan?  And  the  American  doctrine  is  that  the  administrator 
de  bonis  non  derives  his  title  from  the  deceased,  and  not  from 
his  predecessor  in  office.^ 

S  1 29.    Administration  de  bonis  non ;   to  -whom  committed.  — 

Administration  de  bonis  noji  is  usually  committed  according 
to  the  rules  already  laid  down  concerning  the  original  grant 
of  letters.  Thus,  for  administration  de  bojiis  non  with  the 
will  annexed,  administration  with  the  will  annexed  furnishes 
the  criterion  of  preference.*  And  for  administration  de  bojtis 
non  on  an  intestate  estate,  the  ecclesiastical  rule,  sanctioned 
likewise  by  courts  of  common  law,  has  been  that  there  is  no 
distinction  in  the  choice  between  this  and  original  admin- 
istration.^ But  while  these  rules  prevail  in  England,  they 
differ  in  the  United  States.^     Thus,  the  New  York  statute 

1  Creath  v.  Brent,  3  Dana,  129;  ministration  may  be  proper  where  the 
Hooper  v.  Scarborough,  57  Ala.  510.  executor  has  advanced  for  debts  and 
Under  Mississippi  statutes,  however,  distribution  from  his  own  funds,  but  has 
peculiar  provision  is  made  for  a  new  not  had  an  opportunity  to  reimburse 
grant  of  letters  in  the  county  to  which  himself.  Munroe  v.  Holmes,  13  Allen, 
the  administrator  moves  or  to  which  the  109. 

property  is  removed.  Watkins  z'.  Adams,  *  Wms.  Exrs.  7th  ed.  472. 

32  Miss.  333.     As  to  what  constitutes  ^  Wms.    Exrs.    474,    475;     2    Hagg. 

removal    from  office,  resignation,   etc.,  Appendix,  169,  170. 

%QQ  c.  posl.  ^  If  creditors  of  an   estate  declared 

2  Lyons,  Ex  parte,  2  Leigh,  761.  insolvent    fail    to    nominate,    the    court 
^  Foreign  Missions,  In  re,  27  Conn,  may  appoint  an  administrator  de  bonis 

344.     The    reduction    of   the   assets   to  non  at  discretion.     Long  v.  Easly,   1 3 

cash  is  not  necessarily  a  full  settlement  Ala.  239.     A  female  first  cousin  on  the 

of  the   estate,  so    as   to    dispense  with  father's  side  takes  precedence  of  a  male 

administration  de  bonis  non.   Donaldson  first  cousin  on  the  mother's  side  under 

V.  Raborg,  26  Md.  312.     And  such  ad-  the  Maryland  code.     Kearney  v.  Tur- 

172 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 29 

provides  that  lettcr.s  shall  be  granted  "  to  the  widow,  ne.xt  of 
kin,  or  creditors  "  of  the  deceased  "in  the  same  manner  as 
thereinbefore  directed  in  relation  to  original  letters  of  admin- 
istration," but  without  prescribing  the  order  of  preference  as 
between  the  classes  named. ^  But  in  other  States,  Massachu- 
setts for  instance,  it  is  provided  that  where  a  sole  executor 
or  administrator  dies  before  he  has  fully  administered  the 
estate,  the  next  of  kin  of  the  deceased  have  no  right  to  claim 
administration  de  bonis  non,  but  the  judge  of  probate  may 
grant  it  to  any  suitable  person.^ 

The  grant  of  administration  de  bonis  non  regards,  accord- 
ing to  the  better  reasoning,  the  interest  of  the  original  estate, 
rather  than  of  those  representing  the  original  appointee, 
whose  management,  indeed,  may  require  a  close  investigation, 
after  his  death,  removal,  or  resignation  ;^  and  hence  it  seems 
better  still  that  the  court  should  have  power  to  appoint  at 
discretion  some  third  person  committed  to  neither  interest, 
but  impartial  between  them,  as  well  as  energetic  and  prudent. 
So,  too,  in  determining  here  the  right  of  kindred  to  admin- 
ister, the  status  at  the  death  of  the  person  who  left  the 
estate,  and  not  the  status  at  the  time  the  trust  became  vacant, 
should  be  regarded  ;*  for  thus  does  the  appointment  go  by  the 
beneficial  interest. 

ner,  28  Md.  408.     The  widow's  prefer-  the  usual  priority  under  "special  cir- 

ence  is  considered  in  Pendleton  v.  Pen-  cumstances,"  etc.,  joint  grant  of  admin- 

dleton,  14  Miss.  448.     The  creditor  for  istration  de  bonis  non  has  been  made  to 

the  greatest  amount  will  be  appointed  a  next  of  kin  and  a  person  entitled  in 

administrator  de  bonis  non,  other  things  distribution.     Grundy,  Goods  of,  L.  R. 

being  equal.    Cullar  v.  Quince,  2  Hayw.  i  P.  &  D.  459;   and  see  L.  R.  I  P.  &  D. 

(N.  C.)  60.                                              ^  450,  538. 

1  Bradley  v.  Bradley,  3  Redf.  (N.  Y.)  If  a  married  woman  be  executrix  or 
512.  This  statute  is  construed  to  give  administratrix  and  dies,  those  interested 
the  residuary  legatee  preference  as  in  the  estate,  rather  than  her  surviving 
against  the  widow,  where  the  sole  exec-  husband,  should  be  taken  for  the  sue- 
utor  dies,  in  like  manner  as  if  he  had  cession.  Wms.  Exrs.  416.  The  mar- 
renounced,  lb.  And  see  Cobb  v.  riage  of  a  woman,  serving  in  such  a 
Beardsley,  37  Barb.  192;    supra,  §  99.  capacity,  is  by  some  codes  made  to  ter- 

2  Neither  widow  nor  next  of  kin  have,  minate  the  trust  so  that  administration 
therefore,  a  right  to  claim  administration  de  bonis  non  would  be  proper.  Mass. 
de  bonis  non  in  Massachusetts.  Russell  Gen.  Stats,  c.  loi,  §  i.  And  see  supra, 
V.  Hoar,  3  Met.  (Mass.)  187.  §  128. 

3  Under  the  English  Stat.  20  &  21  *  Wms.  Exrs.  475,  476;  i  Cas.  temp. 
Vict.  c.  77,  authorizing  a  disregard  of  Lee,  179. 


§131  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

§  130.  Death  of  Surviving  Spouse  pending  Settlement  of  De- 
ceased Spouse's  Estate.  —  If  the  husband  dies  pending  the  set- 
tlement of  his  deceased  intestate  wife's  estate,  the  interest 
will  devolve  upon  his  next  of  kin.  This  is  the  English  rule, 
and  it  applies  in  this  country  wherever,  certainly,  the  right 
to  administer  for  a  husband's  own  benefit  prevails.  But  b) 
the  old  ecclesiastical  practice  in  England,  the  course  of  ad- 
ministration was  irregular.  If  the  husband  died  before  his 
appointment,  administration  was  granted  to  the  wife's  next 
of  kin  and  not  the  husband's ;  such  administration,  however, 
being  treated  in  equity  as  trustee  for  the  husband's  legatees 
or  next  of  kin.^  But  thus  to  pass  over  those  beneficially 
interested  for  strangers  pro  forma,  who  might  be  hostile, 
seemed  so  contrary  to  sound  principle,  that  the  husband's 
representatives  were  afterwards  preferred  in  a  case  of  admin- 
istration dc  bonis  non,  and  it  was  held  that  administration 
ought  to  go  with  the  interest,  whether  the  husband  had  taken 
out  letters  on  his  wife's  estate  before  his  own  death  or  not.^ 
In  fine,  the  more  rational  rule  has  been  established,  both  in 
England  and  the  United  States,  that  administration  on  the 
wife's  estate  shall  be  granted,  in  case  of  the  husband's  death 
pending  its  settlement,  to  the  husband's  representatives ; 
unless  indeed  (as  under  a  marriage  settlement  or  some  pecu- 
liar statute)  the  wife's  next  of  kin  are  entitled  to  the  beneficial 
interest ;  the  grant  in  either  case  following  the  interest.^ 

§  131.  Administration  de  bonis  non  ;  Miscellaneous  Points.  — 
Where  a  statute  order  of  preference  is  preserved  in  the  grant 

1  Schoul.  Hus.  &  Wife,  §  415;  Wms.  viding  that  the  husband's  administrators 
Exrs.  412;  Squib  v.  Wyn,  l  P.  Wms.  and  executors  may  take  the  property,  so 
378;    2  Hagg.  Appendix,  169.  as  to   dispense   with   administration   de 

2  Fielder  v.  Hanger,  3  Hagg.  769;  bonis  non  on  the  wife's  estate.  Lock- 
Attorney-General  V.  Partington,  3  H.  &  wood  v.  Stockholm,  11  Paige,  87.  But 
C.  193;    Wms.  Exrs.  413,  414.  cf.  Harvey,  Re,  3  Redf.  (N.  Y.)  214. 

^  Fielder  v.  Hanger,  supra ;  Hendrin  See  as  to  a  preference,  likewise  ac- 

V.   Colgin,  4  Munf.  231;    Whitaker   v.  cording  to  the  interest,  where  a  widow 

Whitaker,    6    Johns.     112;     Bryan    v.  died   before  having  fully  administered 

Rooks,  25  Ga.  622;  Harvey,  He,  3  Redf.  her  husband's  estate,  and  collateral  kin- 

(N.  Y.)  214;    Pattersons.  High,  8  Ired.  dred  on  her  side  and  on  the  husband's 

Eq.  52;   Schoul.  Hus.  &  Wife,  §  415.  side   both   desire   letters.      Cutchin    v. 

See  statute  in  New  York  specially  pro-  Wilkinson,  I  Call  (Va.),  I. 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 32 

of  administration  de  bonis  non,  the  citation,  which  is  always  a 
proper  preliminary  to  the  grant  of  such  letters,  may  be  found 
indispensable  for  concluding  those  in  priority  ;  ^  otherwise, 
however,  where  the  statute  dispenses  with  such  precedence 
and  leaves  the  court  to  its  own  unfettered  choice.^ 

Letters  of  administration  dc  bonis  non  issue  in  due  form  as 
in  other  cases  ;  following,  however,  the  peculiar  style  appro- 
priate to  the  grant  ;  and  the  probate  record  or  judicial  order 
makes  due  reference  to  the  former  grant  and  the  manner  of 
its  termination.  The  administrator  thus  appointed  makes 
oath  and  qualifies  after  the  manner  of  a  general  administrator, 
miitatis  mutandis.^  This  sort  of  administration  is  usually  to 
be  regarded  as  a  general  grant ;  but  under  exceptional  circum- 
stances it  may  be  limited.* 

§  132.  Temporary  Administration;  Administration  during 
Minority  (durante  minore  aetate).  —  Temporary  administration 
deserves  attention  among  the  peculiar  classes  enumerated 
in  the  present  chapter.  Unlike  those  already  described,  this 
administration  is  of  a  limited  or  circumscribed  character,  in 
being  confined  to  a  particular  extent  of  time,  though  the  ad- 
ministrator has  the  powers  of  an  ordinary  administrator  for 
the  time  being. 

To  this  class  belongs  what  is  known  as  administration 
during  minority.  Administration  during  minority  {durante 
minore  cetate)  may  be  granted  where  the  person  who  was  con- 
stituted sole  executor  under  a  will,  or  who  has  the  right  of 
precedence  to  administer  an  intestate  estate,  is  under  age, 
and  therefore  legally  incapable  of  serving  for  the  time  being. 
In  the  one  instance,  administration  during  minority  with  the 
will  annexed  may  be  properly  committed  to  another  ;    in  the 

1  VVms.  Exrs.  477,  478;  i  Hagg.  699;  *  In  English  practice  it  has  l)een 
2  Hagg.  626.  limited  in  certain  instances.     See  Hain- 

2  See  Sivley  v.  Summers,  57  Miss,  mond,  Goods  of,  L.  R.  6  P.  D.  104.  So 
512.  In  English  practice,  the  grant  of  American  statutes  provide,  too,  where 
administration  de  bonis  non  may  be  lim-  this  administration  is  taken  out  after 
ited  to  a  particular  interest,  as  that  of  a  twenty  years,  as  to  property,  etc.,  ascer- 
sole  creditor.  Burdett,  Goods  of,  L.  J.  tained  afterwards.  Mass.  Pub.  Stats. 
45,  P.  D.  A.  71.  c.  loi. 

'  See  Wms.  Exrs.  478,  479. 


S  132 


EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 


Other,  administration  simply,  with  the  like  qualification.  Eng- 
lish practice  deals  with  this  administration  more  fully  than 
American  ;  ^  but  it  is  recognized  more  or  less  clearly  in  parts 
of  the  United  States,  where,  however,  the  policy  is  to  avoid 
such  grants  limited  in  terms  as  much  as  possible.^  If  there 
are  several  executors,  and  one  of  them  is  of  full  age  and 
capacity,  administration  during  minority  need  not  be  granted, 
because  the  person  of  full  age  may  serve,  notwithstanding 
the  nonage  of  others.^ 

The  usage  of  the  English  courts  has  been  to  grant  admin- 
istration during  minority  to  the  child's  guardian  ;  but  this 
rule  is  not  invariable ;  and  next  of  kin  and  guardians  alike 
may  be  passed  by  ;  for  after  all  this  sort  of  administration  is 
a  grant  discretionary  with  the  court.*  An  administrator 
diirante  viinore  estate  has  the  functions  of  an  ordinary  ad- 
ministrator so  long  as  his  authority  lasts.^  It  was  formerly 
held  that  an  infant  executor  was  capable  of  serving  at  seven- 
teen, but  the  confusion  of  legal  rights   and    responsibilities 


^  Wms.  Exrs.  479-495 ;  Cope  v.  Cope, 
L.  R.  i6  Ch.  D.  49. 

2  Pitcher  V.  Armat,  6  Miss.  288;  Ell- 
maker's  Estate,  4  Watts,  34;  Taylor  v. 
Barron,  35  N.  H.  484,  493,  per  Bell,  J. 
And  see  Mass.  Gen.  Stats,  c.  93,  §  7,  as 
to  committing  administration  with  the 
will  annexed  where  the  executor  named 
in  the  will  of  the  deceased  is  a  minor. 
In  North  Carolina,  the  court  may  ap- 
point an  administrator  durante  fninori- 
tate,  where  the  widow  is  under  twenty- 
one  years  of  age,  and  give  the  adminis- 
tration to  her  on  her  attaining  full  age, 
or  the  office  may  be  tilled  by  such  per- 
son as  she  shall  nominate.  Wallis  v. 
Wallis,  I  Wins.  (N.  C.)  78. 

^  Wms.  Exrs.  479.  See  Cartwright's 
Case,  I  Freem.  258.  The  Massachu- 
setts statute  provides  that  in  such  a  case 
the  other  executor  shall  administer  until 
the  minor  arrives  at  full  age,  when,  upon 
giving  bond  and  qualifying,  the  latter 
may  be  admitted  as  joint  executor  with 


him.  Mass.  Gen.  Stats,  c.  93,  §  7.  As 
to  administration,  American  practice 
usually  passes  over  those  in  minority, 
and  selects,  without  any  punctilious  re- 
gard for  their  right  of  choice,  some  suit- 
able administrator  invested  with  general 
powers  as  in  other  cases. 

*  Wms.  Exrs.  481,  482,  and  cases 
cited;  I  Hagg.  381.  The  English  Pro- 
bate Act,  §  73,  enlarges  the  discretion  of 
the  courts.  See  its  application  under  a 
will  making  the  daughter  sole  executor, 
where  limited  administration  was  granted 
to  the  trustees,  but  probate  was  refused. 
Stewart,  Goods  of,  L.  R.  3  P.  &  M.  244. 
And  see  Burchmore,  Goods  of,  L.  R.  3 
P.  &  D.  139. 

6  Cope  V.  Cope,  L.  R.  16  Ch.  D.  49. 
But  formerly  the  opinion  prevailed  that 
such  administrator  had  scarcely  more 
than  a  bailiff's  or  servant's  authority. 
See  Wms.  Exrs.  553,  554,  showing  how 
the  functions  were  very  gradually  ad- 
milted  by  judicial  precedents. 


176 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 33 

thereby  entailed  upon  the   administration    of   estates  ended 
with  the  prohil)ition  of  statute  38  Geo.  III.  c.  87.^ 

Where  there  are  several  e.xecutors,  all  under  age,  and  ad- 
ministration during  minority  is  granted  in  consequence,  it 
will  cease  upon  any  one  of  the  e.xecutors  coming  of  age.^ 

§  133.  Temporary  Administration;  Administration  durante 
absentia.  — We  have  elsewhere  seen  how  executors  and  ad- 
ministrators out  of  the  jurisdiction  may  substitute  their  nomi- 
nees ;  and  what  general  statute  provisions  are  made  for  the 
case  of  non-residence,  as  by  taking  out  letters  and  having  a 
resident  attorney  authorized  to  accept  service.'^  But  in  h^ng- 
lish  ecclesiastical  practice,  if  probate  had  not  been  obtained, 
and  the  sole  executor  named  in  the  will  was  out  of  the  king- 
dom, a  limited  administration  durante  absentia  might  be 
granted,  limited  in  time  correspondingly ;  and  so,  too,  where 
the  next  of  kin  was  abroad,  and  letters  of  ordinary  adminis- 
tration had  not  been  granted.^  Similar  grants  are  found  in 
our  earlier  American  practice.^  But  the  more  usual  course 
in  the  United  States  at  present  is  (subject  of  course  to  local 
variations  in  accordance  with  statute  direction  on  the  subject), 
for  the  court  to  appoint  some  one  the  general  administrator 
of  the  estate,  either  with  or  without  the  will  annexed,  accord 
ing  as  one  may  have  died  testate  or  intestate,  treating  this 
official  as  the  general  and  responsible  representative  of  the 
estate  ;  the  case  admitting,  perhaps,  of  what  we  term  a  special 
administration,  if  the  emergency  be  pressing  and  likely  to  be 
temporary  only ;  while  here  the  rights  of  next  of  kin,  as  such, 


^  Section  6  of  this  act,  reciting  the  and  not  before,  probate  of  the  w\\\  shall 

inconvenience  of  grants  to  infants  under  be  granted  to  him."     Wnis.  Exrs.  485. 

the  age  of  legal  majority,  enacts  that  •^4  Burn  Eccl.  Law,   228;    3   Redf. 

"where  an  infant  is  sole  executor,  ad-  Wills,  107. 

ministration  with  the  will  annexed  shall  ^  Supra,  §§  109,  127. 

be  granted  to  the  guardian  of  such  in-  ^  Wms.    Exrs.    502-512;     Clare     v. 

fant,  or   to  such    other  person    as   the  Hedges,  i   Lutw.  342;   s.  c.  cited  in  2 

spiritual  court  shall  think  fit,  until  such  P.   VVms.   579.     This   case    was   misre- 

infant  shall  have  attained  the  full  age  ported   in  4  Mod.   14,  as  is  shown   in 

of  twenty-one  years,  at  which  period.  Slater  z'.  May,  2  Ld.  Raym.  1071. 

'"  Willing  V.  Perot,  5  Rawle,  264. 

177 


§    133  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

to  dictate  administration,  are  more  lightly  weighed  than  in 
England,  under  all  circumstances.^ 

Lord  Holt  has  observed  that  it  was  reasonable  there  should 
be  an  administrator  durante  absentia,  and  that  this  adminis- 
tration stood  upon  the  same  reason  as  an  administration 
durante  vihiore  cetate  oi  an  executor,  viz.:  that  there  should 
be  a  person  to  manage  the  estate  of  the  testator  till  the  per- 
son appointed  by  him  is  able.^  But  while  both  grants  are  of 
the  temporary  administration  sort,  it  is  not  certain  that  they 
confer  commensurate  authority.^ 

Administration  durante  absentia  was  formerly  available 
only  where  original  letters  testamentary  or  of  administration 
had  not  issued  ;  in  other  words  it  was  for  the  preliminary 
convenience  of  the  estate  alone.  When  probate  had  once 
been  granted,  and  the  executor  afterwards  went  abroad,  the 
spiritual  courts  would  not  grant  new  administration.*  This 
produced  inconvenience ;  for,  while  a  power  of  attorney 
might  answer  all  ordinary  purposes  on  the  absentee's  behalf, 
there  are  special  cases  where  the  demand  for  a  personal  rep- 
resentative within  the  jurisdiction  is  indispensable.  Hence 
the  statute  38  Geo.  HI.  c.  87,  was  passed,  which,  in  connec- 
tion with  still  later  acts,  permits  the  grant  of  special  admin- 
istration whenever  the  ordinary  executor  or  administrator 
goes  and  remains  abroad  out  of  the  reach  of  process  ;  the 
special  appointee  having  been  at  first  intended  simply  to  rep- 
resent the  estate  in  proceedings  in  equity,  though  limited 
grants  are  now  permitted  in  a  much  wider  sense.^     The  ap- 

1  See  §  135, /oj/,  as  to  special  admin-  must  appoint  an  attorney  authorized  to 
istration.  Various  local  statutes  may  be  accept  process,  etc.,  on  his  behalf, 
found  to  meet  the  case  of  non-residence  '^  Slater  v.  May,  2  Ld.  Raym.  107 1. 
or  absence.  Prolonged  absence,  detri-  "  Thus  it  is  observed  that  an  admin- 
mental  to  the  interests  of  an  estate,  and  istrator  durante  absentia  may  assign  the 
involving  negligence,  might  present  a  leaseholds  and  other  property  of  de- 
case  perhaps  for  removal  from  office  in  ceased.  Webb  v.  Kirby,  3  Sm.  &  G.  333. 
some  States.  The  Louisiana  code  in  the  *  In  South  Carolina  administration 
case  of  an  "  absentee  "  requires  a  cura-  durante  absentia  cannot  be  granted  after 
tor  ad  hoc  appointed  to  defend  certain  probate  of  the  will  and  letters  testamen- 
suits.  Morris  v.  Bienvenu,  30  La.  Ann.  tary  are  granted.  Griffith  v.  Frazier, 
878;   Weaver  z/.  Penn,  27  La.  Ann.  129.  8  Cranch,  9. 

Good   security   will   be   required   of  an         °  Wms.    Exrs.    503-509,   ci'ing  these 

absentee,  who,  under  some  local  statutes,  statutes  and  numerous  decisions      The 

178 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 34 

pointment  of  a  mere  attorney  may  terminate  by  the  death  of 
the  absent  fiduciary  who  conferred  it ;  but  no  such  effect 
attends  the  grant  of  limited  administration  under  these  stat- 
utes.^ The  limited  purpose  of  the  grant,  as  for  pending  pro- 
ceedings in  court,  is  likewise  protected  by  the  same  means. 
But,  aside  from  legislation,  and  as  concerning  the  appointment 
durante  absentia  preliminary  to  probate  or  to  the  grant  of 
ordinary  administration,  of  which  the  court  took  earlier  cog- 
nizance, it  is  said  that  such  administration  is  at  an  end  the 
moment  the  absentee  returns.^ 

§  1 34.  Other  Temporary  Administrations ;  Administration  pen- 
dente Lite,  etc.  —  English  probate  practice  recognizes  other 
temporary  administrations  ;  usually  limited,  however,  in  pur- 
pose as  well  as  time.  Administration  pendente  lite  is  of  this 
description  ;  a  grant  long  since  allowable  where  controversy 
arose  touching  the  right  of  administration,  and  afterwards 
equally  permitted  in  contests  over  the  probate  of  wills  and 
letters  of  executorship.^  Administrators  pendente  lite  are 
virtually  appointees  of  the  probate  court,  corresponding  nearly 
to  receivers  in  chancery,  so  far  as  the  occasion  for  an  appoint- 
ment may  be  regarded,  and  they  are  assumed  to  be  indif- 

acl  38  Geo.  III.  c.  87  (known  as  Mr.  2  Rainsford  v.  Taynton,   7  Yes.  466; 

Simeon's  act),  had  only  this  limited  ap-  Wms.  Exrs.  509. 

plication  to  proceedings  in  equity.  It  ^  See  Wms.  Exrs.  496-501,  and  cases 
was  passed,  moreover,  with  reference  to  cited  passim.  Formerly  the  English 
executors  only.  The  Court  of  Probate  spiritual  court  would  not  appoint  an 
Act,  20  &  21  Vict.  c.  77,  §  74  (1857),  administrator  pendente  lite  except  in 
extended  the  operation  of  this  statute  to  cases  involving  the  right  to  adminis- 
the  case  of  absent  administrators.  And  tration.  Moore,  636;  3  Keb.  54.  But 
by  the  statute  21  &  22  Vict.  c.  95,  §  18,  it  was  decided  in  1731  that  such  admin- 
a  general  scope  was  given  to  these  acts,  istrator  might  be  appointed  in  contests 
"  whether  it  be  or  be  not  intended  to  touching  an  executorship.  Walker  v. 
institute  proceedings  in  the  court  of  Woolaston,  2  P.  Wms.  589.  The  Pro- 
chancery."  Limited  grants  are  now  bate  Court  Act  of  1857  gave  the  probate- 
accordingly  made  as  the  convenience  courts  full  jurisdiction  as  to  controver- 
of  an  estate  may  require.  Ruddy,  Goods  sies  touching  the  validity  of  a  will  or  for 
of,  L.  R.  2  P.  &  D.  330;  Jenkins,  Goods  obtaining,  recalling,  or  revoking  any 
of,  28  W.  R.  431;  Richardson,  Goods  probate  or  any  grant  of  administration, 
of,  35  L.  T.  767.  Act  20  &  21  Vict.  c.  77,  §  70.  And  see 
1  Wms.  Exrs.  509;  Taynton  v.  Han-  the  later  act,  21  &  22  Vict.  c.  95,  §§  21, 
nay,  3  B.  &  P.  26.  22,  which  gave  still  further  scope  to  this 

appointment.     Wms.  Exrs.  496,  497. 

179 


§    134  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ferent  between  the  contending  parties.^  No  one  should  be 
appointed  by  the  court  to  this  trust  who  stands  committed  as 
to  the  choice  of  one  contestant  against  the  other ;  nor  should 
the  decedent's  estate  be  subjected  to  the  cost  and  encum- 
brance of  such  an  administration,  where  a  rightful  executor 
or  administrator  can  discharge  the  duties  of  his  office,  whose 
appointment  is  not  questioned. ^  Administration  pendente 
Hie  is  recognized  in  parts  of  the  United  States  under  various 
qualifications,  though  statutes  of  more  extensive  scope  are 
found  to  include  this  case  under  what  is  rather  to  be  termed 
special  administration.^  The  powers  of  the  English  adminis- 
trator/(fw^ij'w/'*?  lite,  though  originally  limited  by  construction, 
have  been  so  far  extended  under  the  Court  of  Probate  Act  of 
1857,  and  later  acts,  that  he  may  be  made  receiver  of  real 
^^X.2Xq.  pendente  lite,  with  power  to  receive  rents  and  profits, 
and  let  and  manage,  and,  as  to  personal  estate,  exercise  all 
the  rights  and  powers  of  a  general  administrator,  other  than 
the  distribution  of  the  residue  :  subject,  nevertheless,  to  the 
immediate  control  and  direction  of  the  court,*  which  may 
likewise  require  security  and  grant  him  a  reasonable  remu- 
neration for  his  trouble.^  The  authority  of  an  administrator 
pendente  lite  ceases  with  the  suit.^ 

The  old  books  suggest  other  occasions  for  requiring  a 
limited  administration  as  to  time  ;  as  where  the  testator 
appoints  a  person  to  be  his  executor  at  the  expiration  of  five 

^  Wms.  Exrs.  498-501  and  cases  cited.  And  see  Slade  v.  Washburn,  3  Ired.  L. 

2  Mortimer  v.  Paull,  L.  R.  2  P.  &  D.  557. 

85.     An  appointment  by  consent  of  the  *  Statutes  20  &  21  Vict.  c.  77,  §§  70,  71 ; 

contesting  parties  obviates  objections  of  Wms.  Exrs.  496,  497;    Dawes,  Goods  of, 

this  character.     Wms.  Exrs.  497.  L.  R.  2  P.  &  D.  147;  Tichboine  v.  Tich- 

^  See  special  administration,  post ;  borne,  L.  R.  2  P.  &  D.  41.  An  admin- 
Lamb  V.  Helm,  56  Mo.  420;  Crozier  v.  istrator  pendente  lite  cannot,  in  South 
Goodwin,  i  Lea,  368;  Wade  v.  Bridges,  Carolina,  collect  the  estate  for  the  pur- 
24  Ark.  569.  An  administrator  ap-  pose  of  administration.  Kaminer  v. 
pointed  by  the  chancery  court  under  Hope,  9  S.  C.  253.  Local  statutes 
Tennessee  code,  §  2213,  is  not  a  mere  should  be  consulted  on  such  points  by 
administrator  pendente  lite,  but  a  gen-  the  American  practitioner, 
era!  administrator.  Todd  t/.  Wright,  12  ^  Stats.  20  &  21  Vict.  c.  77,  §  72; 
Heisk.  442.  An  administrator /<'//flV«/^  21  &  22  Vict.  c.  95,  §  21;  Wms.  Exrs. 
lite  should  not  be  appointed  after  the  496. 

general  administrator  has  fully  settled  ^  Cole  v.  Wooden,  18  N.  J.  L,  15. 
the  estate.     Fisk  v.  Norvell,  9  Tex.  13. 

180 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 35 

years  from  his  death,  in  which  case  administration  with  the 
will  annexed  for  the  intermediate  period  from  probate  seems 
proper.^  Administration  limited  until  a  will  left  in  a  distant 
land,  or  requiring  long  search  or  delay,  could  be  found  and 
presented  for  probate  has  been  granted  in  various  modern 
English  cases,  agreeably  to  the  peculiar  state  of  facts  pre- 
sented and  the  urgency  of  an  immediate  appointment.'^ 
Administration,  too,  appears  by  the  English  rule  to  be  well 
granted  where  a  sole  executor  or  administrator  becomes 
insane  and  incapable  of  discharging  his  official  functions;^ 
or  perhaps  out  of  regard  to  a  beneficiary  or  person  entitled 
ordinarily  to  take  the  office,  so  that  a  vacancy  shall  be  filled 
by  some  one  as  for  the  use  and  benefit  of  the  insane  person,* 
such  grants  running  as  during  such  incapacity. 

§  135.  Special  Administration,  for  Limited  and  Special  Pur- 
poses, etc.  —  While  English  probate  practice  accords  so 
many  varieties  of  temporary  administration,  it  also  limits 
frequently  the  grant  to  specific  purposes ;  the  prime  object 
being  a  temporary  protection  of  the  estate  and  all  parties 
in  interest.  And  thus  administration  may  be  granted  in 
exigencies  such  as  we  have  just  considered,  limited  in  terms 
to  the  purpose  of  some  particular  litigation.^  In  an  excep- 
tional case  (though  not  without  strong  reason),  administration 
may  be  granted  so  as  to  be  limited  to  certain  specified  chat- 
tels, while  the  general  administration  goes  elsewhere;^  or 
administration  may  be  revived  for  the  performance  of  some 
particular  act  J 


1  Godolph.  pt.  2,  c.  30,  §  5;  Wms.  answering  a  specified  suit  in  chancery; 
Exrs.  513.  also  i  Hagg.  93;   2  S\v.  &  Tr.  614. 

2  Metcalfe,  Goods  of,  i  Add.  343;  ''Harris  v.  Milburn,  2  Hagg.  62; 
Campbell,  Goods  of,  2  Hagg.  555;  2  Somerset,  Goods  of,  L.  R.  i  P.  &  D. 
Add.  351.  350;     Wms.     Exrs.    520-528.      As    to 

3  Phillips,  Goods  of,  2  Add.  336;  I  administration  in  different  countries, 
Salk.  36;    Wms.  Exrs.  518.  see  c.   7,  post,  ancillary  administration. 

*  lb.;  Evelyn,  Ex  parte,  2  M.  &  K.  '  Where  A.  died  intestate,  without 
4.  As  to  removal  or  revocation  for  in-  known  relatives,  the  English  court,  on 
sanity,  etc.,  see  more  generally  c.  6,  f>ost.  the  ground   that  expense  was  incurred 

*  See  Howell  v.  Metcalfe,  2  Add.  daily,  and  the  value  of  the  estate  dc- 
348,   351,   note,   which   was  limited  to  predating,   granted   administration   aU 

181 


§    135  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

The  result  of  all  this  should  be  to  discourage  any  specific 
enumeration  of  limited  or  special  administrations  of  various 
kinds,  as  at  English  law ;  whose  real  force  and  effect,  as  in 
the  kinds  pendente  lite,  and  durante  absentia,  it  is  not  easy  to 
define.  The  vital  elements  in  all  such  grants  are  two  :  limi- 
tation of  time,  and  limitation  of  purpose ;  and  these  limita- 
tions frequently,  but  not  always,  subsist  together.  In  the 
United  States,  legislation  directs,  as  it  may,  the  whole  matter, 
and  American  policy  appears  to  be  to  regard  general  or  full 
administration,  on  the  one  hand,  whether  original  or  de  bonis 
non,  and  whether  as  to  estates  testate  or  intestate,  as  (together 
with  appointing  executors)  the  usual  and  normal  grant  of 
authority  ;  ^  and  discouraging  on  the  other  hand  limited  grants 
under  strange  names  upon  mere  judicial  discretion,  but  rather, 
facilitating  removals  and  the  creation  of  vacancies  in  an 
emergency,  to  provide  by  way  of  substitute  for  the  miscel- 
laneous kinds  of  limited  administration,  what  may  be  termed 
a  special  administration.  This  special  administration  is  tem- 
porary by  inference,  because  wholly  superseded  by  the  grant 
of  general  administration  or  letters  testamentary  ;  and  it  is 
limited  in  scope  to  the  necessities  of  the  situation.  Legisla- 
tion defines  this  scope  ;  and  special  administration  thus  be- 
comes a  clearly  understood  grant,  well  adapted  to  the  various 
exigencies  likely  to  arise  for  invoking  it.  Its  chief  purpose  is 
ad  colligendum,  or  rather  the  collection  and  preservation 
of  the  decedent's  effects ;  and  the  statute  which  creates  the 
office  sufficiently  explains  its  purpose  and  incidents.  Two 
general  administrations  cannot,  we  all  admit,  subsist  at  the 
same  time ;  nor,  as  a  rule,  can  a  special  and  general  grant. 
For  in  this  latter  instance  the  special  grant  necessarily  pre- 
cedes the  general,  being  made  to  suit  a  temporary  exigency ; 
an  exigency  which  may  precede  either  the  original  appoint- 


colligenda  bona  with  power  to  sell   at  should  administration  during  the  lunacy 

once.     Schwertfegen,  Goods  of,  24  W.  of  an  executor,  etc.     See  sections  pre- 

R.  298.  ceding. 

We  have  seen  that  administration  ^  Lyon,  Ex  parte,  60  Ala.  650.  As 
durante  minore  cctate  is  essentially  a  between  the  words  "special"  and  "gen- 
general  or  full  administration  while  it  eral "  in  a  grant  of  administrations,  see 
lasts;  and  so  in  order  to  be  efficacious,  Jones  v.  Ritter,  56  Ala.  270. 

182 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    1 35 

ment  or  the  filling  of  some  vacancy  created  by  an  appointee's 
death,  removal,  or  resignation.^ 

Special  administration  is  well  developed  in  the  Massachu- 
setts probate  practice.  When  (as  the  statutes  of  that  State 
expressly  provide)  by  reason  of  a  suit  concerning  the  proof  of 
a  will,  orfro7n  any  other  cause,  there  is  delay  in  granting  let- 
ters testamentary  or  of  administration,  the  probate  court 
may  appoint  a  special  administrator  to  collect  and  preserve 
the  effects  of  the  deceased.  The  paramount  duty  of  this 
special  administrator  is  to  collect  all  the  personal  estate  of  the 
deceased,  and  preserve  the  same  for  the  general  executor  or 
administrator,  when  appointed.  For  this  purpose  he  may 
commence  and  maintain  suits,  though  creditors  of  the  estate 
are  not  to  bring  actions  against  him  ;  and  he  may  sell  such 
perishable  property  and  other  goods  as  the  judge  shall  order 
to  be  sold.  In  suitable  cases  the  judge  may  authorize  him  to 
take  charge  of  the  real  estate,  collect  rents,  and  do  all  that 
may  be  needful  for  the  preservation  of  the  property.^  Such 
an  administration  may  readily  be  shaped  by  the  legislature  to 
meet  the  usual  exigencies  of  a  temporary  appointment  for 
limited  purposes  ;  thereby  dispensing  with  the  cumbrous  clas- 
sification of  administration  pe7idente  lite,  durante  absentia, 
and  so  on. 

In  various  States  express  provision  is  made  for  this  special 
or  temporary  administrator  who  shall  collect  and  preserve 
the  estate  for  the  permanent  and  general  appointee.  A  dis- 
interested person,  not  a  litigant,  is  to  be  selected  ;  nor  are  the 
rights  of  widow  and  next  of  kin,  or  legatees,  so  strictly  re- 

1  Mass.  Pub.  Stat.  c.   130,  §§   10-17.  ^^^  '^o  authority  to  act,  and  the  power 

Letters  of  general  administration  issued  and  functions  of  the  temporary  adminis- 

during  the  pendency  of  a  contest  over  trator    last   until    the    determination   of 

a  will  would  be  null.     Slade  v.  Wash-  the  appeal.     Brown  v.  Ryder,  42  N.  J. 

burn,  3  Ired.  L.  557.     Where  the  pro-  Eq.    356;     Crozier,   Re,    65   Cal.    332. 

bate  of  a  will  has  been  in  litigation,  the  But   cf.    63    Tex.    220,     as    to    a    later 

power  and  functions  of  an  administrator  litigation  over  the  will  not  in  the  nature 

pendente  lite  are  ended  when  the  con-  of  an  immediate  appeal.     In  Moore  v. 

test  is  entirely  over,  the  will  duly  ad-  Alexander,   81    Ala.    509,    an   adminis- 

mitted,  and  the  executor  qualified.     Ro  trator    with    full    power    was    required. 

Bards  v.   Lamb,   89    Mo.   303.      But  if  not  one  ad  litem. 
there  be  an  appeal  from  the  decree  of         2  Mass.  Pub.  Stats,  c.  130,  §§  10-17. 
probate,  the  executor  though  qualified 

183 


§135  EXECUTORS    AND    ADMINISTRATORS.  [PART    II, 

garded  in  the  choice  as  they  would  be  in  a  general  admin- 
istration ;  but  rather  the  sound  discretion  of  the  court,  aided 
by  the  common  consent  and  confidence  of  litigants  and  all 
who  may  be  interested  in  the  permanent  appointment,  directs 
the  selection.  Furthermore,  it  is  the  general  rule  that  this 
officer  may  be  removed  or  superseded  in  his  functions  by  the 
court,  and  that  his  powers  shall  cease  whenever  general  let- 
ters testamentary  or  of  administration  are  granted,  and  due 
qualification  follows,  whether  general  letters  be  original  or 
de  bonis  non  ;  but  that  meantime,  being  an  officer  of  the  court, 
as  it  were,  litigant  parties  cannot  obstruct  the  exercise  of  his 
functions  nor  hinder  him  by  frivolous  appeals  from  the  judge. 
For  a  trust  must  not  be  kept  in  abeyance  which  the  law  in- 
tends should  be  filled  at  once.^ 

This  special  administration  appointment  is  preliminary  to  a 
general  one,  according  to  the  usual  American  practice,  lasts 
for  an  emergency  undefined  as  to  time,  and  cannot  be  granted 
while  a  general  appointee  holds  office,  nor  so  that- the  special 
appointee  shall  fulfil  all  the  functions  of  general  executor  or 
administrator.  There  are  States,  however,  whose  code  clearly 
extends  this  appointment  to  the  temporary  necessities  of 
minority,  durante  minore  cetate  ;  ^  though  it  should  be  observed 

1  A  "  special  collector "  is  thus  recog-  and  may  be  compelled  at  any  time  to 
nized  in  New  York  practice  wherever,  give  way  to  an  administrator-in-chief, 
by  reason  of  contest  or  other  cause,  Flora  v.  Mennice,  12  Ala.  836.  After 
there  is  likely  to  be  delay  in  the  general  a  removal  from  office,  the  special  ad- 
grant.  Mootrie  v.  Hunt,  4  Bradf  (N.  ministrator  may  be  appointed.  De 
Y.)  173;  Lawrence  z/.  Parsons,  27  How.  Flechier,  Succession  of,  i  La.  Ann.  20. 
(N.  Y.)  Pr.  26;  Crandall  v.  Shaw,  2  Pending  the  appeal  of  an  executrix  or 
Redf.  (N.  Y.)  100.  If  a  will  is  con-  administratrix  upon  the  question  of 
tested,  the  executor  named  ought  not,  bonds,  etc.,  the  probate  court  may  ap- 
when  objected  to,  to  receive  the  special  point  a  special  administrator.  Searle  7'. 
appointment.  Howard  v.  Dougherty,  Court  of  Probate,  7  R.  I.  270.  And 
3  Redf.  (N.  Y.)  535.  But  this  depends  see  Thompson  v.  Tracy,  60  N.  Y.  174. 
on  circumstances.  2Dem.286;  4  Dem.  Contest  over  an  administration  witli 
137.  An  executor  who  is  charged  with  will  annexed  is  to  be  included  among 
undue  influence  in  proving  the  will  is  the  exigencies  calling  for  a  special  ap- 
certainly  not  suitable,  i  Dem.  i.  That  pointment.  Lamb  v.  Helm,  56  Mo. 
a  widow  or  next  of  kin  has  no  preference  420.  And  see  State  codes  as  to  such 
in  the  choice  of  special  or  *'  temporary  "  local  legislation. 

administrator, see  Lambz/.  Helm,  56M0.  ^  Wagn.  (Mo.)  Stat.  72,  §  13,  referred 

420.    The  administrator  ad  colligendum  to  in  Lamb  v.  Helm,  56  Mo.  420. 
is  the  mere  agent  or  officer  of  the  court, 

184 


CHAP.    IV.]        APPOINTMENT    OF    ADMINISTRATORS.  §    135 

that  here  the  exigency  lasts  for  a  definite  or  definable  tem- 
porary period,  like  a  guardianship,  and  that  the  appointment, 
to  be  efficacious  at  all,  ought  frequently  to  confer  full  general 
functions,  as  we  have  seen  the  English  appointment  does.* 
As  for  the  departure  of  a  general  executor  or  administrator 
for  foreign  parts,  after  his  appointment,  to  remain  long 
absent,  or  his  subsequent  incapacity,  by  reason  of  insanity, 
to  the  plain  detriment  of  the  interests  of  the  unsettled  estate, 
American  practice  seems  to  prefer  to  the  vague  and  limited 
grants  of  administration,  usual  in  English  practice,  that  a 
vacancy  shall  be  made  in  the  office,  and  that  vacancy  filled  in 
the  usual  way  i^  unless  the  appointment  of  attorney  to  accept 
service  obviates  all  objections.^ 

Every  special  administrator,  or  temporary  appointee  pen- 
dente lite,  should,  when  his  authority  ceases,  pay  over  what 
he  may  have  received,  and  transmit  the  estate  to  the  general 
appointee,  or  do  otherwise  with  it,  as  the  probate  court  shall 
direct ;  render  a  proper  account  of  his  doings  and  retaining  a 
proper  compensation  for  his  services  ;  whereupon  his  respon- 
sibility comes  to  an  end,  if  his  duties  have  been  faithfully 
performed.'* 

1  Supra,  §  133.  Except  as  the  stat-  upon  a  part  of  the  estate  merely,  or  for 
ute  may  have  provided,  a  probate  court  the  performance  of  a  single  act.  Mc- 
has  no  power  to  direct  a  special  admin-  Nairy  v.  Bell,  6  Yerg.  302;  Smith  v. 
istrator  or  "collector"  to  pay  debts,  Pistole,  10  Mumph.  205;  Jordan  i'.  Polk, 
legacies,   or   distributive  shares.     Has-  i  Sneed,  430. 

kett.  Re,  3  Redf.  (N.  Y.)  165;   2  Dem.  As  to  appointing  a  special  adminis- 

292.     Nor    should    such    administrator,  trator  under  the  Iowa  code,  see  Picker- 

nor  an    administrator  pendente  lite,  do  ing  v.  Weiting,  47  Iowa,  242. 

such  acts.     Kaminer  v.  Hope,  9  S.  C.  ^  See  Mass.  Pub.  Stats,  c.  132,  §§  8- 

253;    Elimaker's   Estate,   4  Watts,   34.  13,  whose  provisions  tit  the  case  of  an 

Observe  statute  directions  on  this  point,  executor   or  administrator  removing  or 

2  Upon  a  general  application  for  residing  out  of  the  State  after  his  ap- 
administration,  a  special  grant  may,  in  pointment. 

this  State,  be  made.  Dean  v.  Biggers,  *  See  Elimaker's  Estate,  4  Watts,  36. 
27  Ga.  73.  In  Tennessee,  where  the  As  to  the  special  administrator's  com- 
English  system  appears  to  be  more  pensation,  see  Duncan,  /vV,  3  Redf. 
closely  followed  than  in  most  other  (N.  Y.)  153.  Notice  in  court  of  his  settle- 
States,  it  is  held  that  a  special  adminis-  ment  with  the  general  executor  or  ad- 
tration  may  be  granted,  with  powers  to  ministrator  is  not  necessary.  89  Mo. 
be   exercised  in   a  limited   manner,   or  303. 

185 


§   137  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 


CHAPTER   V. 

THE    BONDS    OF    EXECUTORS    AND    ADMINISTRATORS. 

^  1 36.  Necessity  of  Qualifying  before  Appointment  ;  Security 
required  by  the  Court.  —  In  modern  probate  practice,  as  we 
understand  it  in  the  United  States,  an  executor  or  adminis- 
trator is  required  to  qualify  by  giving  bonds  before  letters 
conferring  the  appointment  can  issue  to  him.  This  bond  is 
expressed  in  such  sum  as  the  probate  court  may  see  fit  to 
order  ;  its  form  is  established  by  the  court  after  the  statute 
requirements  ;  it  is  made  payable  to  the  judge  or  his  suc- 
cessors in  office  ;  its  conditions  recite  the  essential  duties  of 
the  trust  reposed  in  the  appointee ;  and,  filed  in  the  probate 
registry,  it  serves  as  legal  security  furnished  by  the  executor 
or  administrator  for  the  benefit  of  all  persons  who  may  be 
interested  in  the  estate,  and  in  case  of  maladministration 
may  be  sued  upon  accordingly.  Sometimes  sureties  are 
required  on  these  bonds ;  and  sometimes  sureties  are  dis- 
pensed with. 

This  subject  we  now  examine  in  detail,  with  separate 
reference  to  the  bonds  of  executors  and  of  administrators  ; 
observing  throughout  this  chapter  the  distinctions  which 
obtain  in  English  and  American  practice. 

§   137.    Bonds:    When   and  How   required  from  an  Executor. 

—  In  English  practice,  the  spiritual  court  exerted,  from 
early  times,  so  little  authority  over  an  executor,  whose  cre- 
dentials were  thought  to  be  derived  rather  from  his  testator's 
selection  than  the  ordinary,  that  bonds  could  not  be  required 
from  such  fiduciaries.  But  chancery  stretched  its  arms  for 
the  better  protection  of  widows  and  orphans  while  the  ordi- 
nary was  thus  powerless,  and  it  became  a  rule  that  an  insol- 
vent or  bankrupt  executor  could  not  only  be  restrained  by 
the  appointment  of  a  receiver,  but  compelled  in  chancery, 

186 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    1 3/ 

like   any  other  trustee,   to  furnish   security  before  entering 
actively  upon  his  trust.  ^ 

The  American  rule,  both  as  to  the  appointment  and  quali- 
fication of  executors,  is  far  more  consonant  to  justice  and 
impartial,  and  brings  administrators  and  executors  more 
nearly  under  one  system  of  rules.  The  qualification  of 
executors  is  not  left  to  the  interposition  of  equity,  but  is 
confided  in  the  first  instance  by  legislation  to  the  discretion 
of  the  court  most  competent  to  exercise  it ;  so  that  the  pro- 
bate court  now  passes  upon  the  bond  in  connection  with  the 
appointment,  withholding  letters  testamentary  unless  the 
executor  complies  with  the  judge's  prudent  requirement. 
Local  statute  prescribes  the  form  and  manner  of  giving  this 
bond,  as  well  as  indicating  the  extent  of  security.  Thus,  in 
certain  States,  the  executor,  before  letters  testamentary  issue 
to  him,  must  give  bond  with  condition  to  return  his  inven- 
tory to  the  probate  court  within  the  time  fixed  by  statute  ; 
to  administer,  according  to  law  and  the  will  of  the  testator, 
all  the  personal  estate  and  the  proceeds  of  all  real  estate  sold 
for  the  payment  of  debts  and  legacies  ;  and  to  render  upon 
oath  a  just  and  true  account  of  his  administration  within  one 
year  and  at  any  other  time  when  required  by  the  court.^  If 
a  person  appointed  executor  refuses  or  neglects  unreasonably 
to  give  the  statute  bond  as  required,  letters  testamentary 
will  be  granted  to  the  other  executors  if  there  be  any  such 
capable  and  willing ;  otherwise,  administration  with  the  will 
annexed.  In  other  words,  qualification  by  bond  is  a  pre- 
requisite to  receiving  letters  testamentary ;  the  executor 
derives  his  office  only  under  a  testamentary  appointment 
which  has  afterwards  been  confirmed  by  a  decree  of  the 
probate  court  and  the  grant  of  letters  ;  nor  is  one  entitled  to 
exercise  any  power  as  executor  until  he  has  been  duly  quali- 
fied. Such  is  the  rule  of  most  American  States,  as  prescribed 
by  the  legislature.^ 

1  Wms.  Exrs.  7th  ed.  237;  Holt,  310;  *  Gardner  v.  Gnatt,  19  Ala.  666; 
I  Eq.  Cas.  Abr.  238,  pi.  21;  2  Vern.  Echols  v.  Barrett,  6  Ga.  443;  Hall  v. 
249;   Slanning  I*.  Style,  3  P.  Wms.  336.  Gushing,  9  Pick.  395;    Fairfax  i'.  Fair- 

2  Smith  Prob.  Pract.  (Mass.)  60-64;  fax,  7  Gratt.  36;  Holbrook  7>.  Bentley, 
Mass.  Gen.  Stats,  c.  93.  32  Gonn.   502;     Webb   v.   Dietrich,   7 

187 


§    137  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

As  to  furnishing  a  bond  with  surety  or  sureties,  however, 
the  e.xecutor  is  still  favored  above  administrators  in  Ameri- 
can practice.  Our  rule  appears  to  be  that  the  executor  shall 
give  bond  "with  sufficient  surety  or  sureties."  ^  But  execu- 
tors are  exempted  from  furnishing  a  surety  or  sureties  (as 
such  statutes  frequently  direct)  when  the  testator  has 
ordered  or  requested  such  exemption,  or  when  all  the  per- 
sons interested  in  the  estate  certify  their  consent,  or,  upon 
being  cited  in,  offer  no  objection.  Even  thus,  the  judge  is 
still  to  regard  the  interests  of  the  estate,  according  to  the 
preferable  practice,  and  may,  at  or  after  the  granting,  of 
letters  testamentary,  require  a  bond  with  sufificient  surety  or 
sureties,  if  he  thinks  this  desirable  because  of  some  change 
in  the  situation  or  circumstances  of  the  executor  or  for  other 
sufificient  cause.^  Nor  is  even  the  testator's  request  for 
such  an  exemption  to  be  taken  otherwise  than  as  the  expres- 
sion of  his  confidence  in  the  person  he  himself  designated  ; 
and  hence,  if  that  person  renounces  or  is  found  incapable,  the 
request  cannot  operate  for  the  benefit  of  others  appointed  by 
the  court  to  administer.^  In  some  States  the  court  cannot 
dispense  with  security  even  should  the  will  direct  otherwise.* 


Watts  &  S.  401 ;   Pettingill  v.  Pettingill,  guardian  of  any  minor  interested  therein, 

60    Me.   41 1;    Bankhead    v.   Hubbard,  a  published  citation  after  the  usual  form, 

14  Ark.  298.     One  named  as  executor  incorporating   notice   of  the  request  to 

in  a  will  has  no  authority  to  act  without  be   exempted    from    furnishing    sureties 

qualifying    after   probate,   and   his   acts  with   that   of  the  pending  probate  and 

without  qualifying  are  void.     Moore  v.  application  for  letters  testamentary,  will 

Ridgeway,  I  B.  Mon.  234.     And  where  suffice.     Wells  v.  Child,  12  Allen,  330. 

a    testator    appointed    two    persons   as  In  some  States  upon  a  creditor's  objec- 

executors  of  his  will,  only  one  of  whom  tion,   sureties    may   be   required   of  the 

qualities,  that  one  has  all  the  authority  executor.     Smith  v.  Phillips,  54  Ala.  8. 

under  the  will  which  both  would  have  had  If  there  are  infants  concerned,  the  court 

if  both  had  qualified.     Bodley  z'.  McKin-  must    look    carefully  to  their  interests, 

ney,  17  Miss.  339;    Phillips  v.  Stewart,  Johns  v.  Johns,  23  Ga.  31.     Executors 

59  Mo.  491.                             '  pecuniarily  irresponsible  required  to  give 

1  Mass.  Gen.  Stats,  c.  93,  §  i;    Wms.  security   notwithstanding    the   testator's 

Exrs.  529,  n.  by  Perkins.  request,  knowing  such  irresponsibility. 

'^  See  Mass.  Gen.  Stats,  c.  129;    Smith  Freeman  v.  Kellogg,  4   Redf.   (N.  Y.) 

V.  Phillips,  54  Ala.  8;   Clark  v.  Niles,  218. 

42  Miss.  460;  Atvvell  f.  Helm,  7  Bush,  ^  pajrfax   v.    Fairfax,    7    Gratt.    36; 

504.     In  Massachusetts  only  persons  of  Langley  v.  Harris,  23  Tex.  564. 

full  age  and  legal  capacity  need  certify  *  Bankhead  v.  Hubbard,  14  Ark.  298. 
their  assent;    as   to    creditors  and  the 


CHAP,  v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    1 38 

But  in  others,  once  more,  the  testator's  request  appears  to 
be  more  of  a  criterion  in  this  regard  than  the  rule  of  com- 
mon prudence  would  allow. ^ 

A  few  States,  conformiui^  more  nearly  to  English  proced- 
ure, appear  to  treat  executors  differently  from  administra- 
tors, requiring  bonds  from  one  of  the  former  class  only 
when  his  circumstances  are  precarious  or  the  interests  of  the 
estate  render  such  security  necessary.  In  each  State,  how- 
ever, the  legislature  prescribes  the  course  to  be  pursued  and 
furnishes  a  rule  for  judicial  action,  by  no  means  constant  and 
uniform. 2  But  the  bond,  however  given,  and  whether  with 
or  without  sureties,  contemplates  commonly  a  due  adminis- 
tration of  the  estate  to  the  full  extent  of  paying  all  debts  and 
legacies,  distributing  the  residue  properly,  and  rendering  an 
inventory  and  accounts  to  the  court. ^ 

§  138.  Bonds  required  from  an  Executor;  Residuary  Legatee's 
Bond.  —  Statutes  are  found  to  dispense  with  the  usual  bond 
when  the  executor  is  residuary  legatee,  and  it  appears  that  so 
extensive  a  security  is  not  needful  for  the  protection  of  any 
person  interested  in  the  estate.  In  such  a  case  the  executor 
may,  at  his  option,  give  a  bond  with  condition  merely  to  pay 
all  debts,  and  legacies,  and  the  statute  allowances  to  widow  and 
minors.*     The  advantage  of  such  a  bond  is  in  saving  him  the 

1  Wilson  V.  Whitefield,  38  Ga.  269;  ciled  out  of  the  State  is  not  entitled  to 
Bowman  v.  Wootton,  8  B.  Mon.  67.  letters  without  giving  security  as  is  re- 

2  Mandeville  v.  Mandeville,  8  Paige,  quired  from  dative  testamentary  execu- 
475.  As  to  the  bond  required  in  New  tors.  Davis,  Succession  of,  12  La.  Ann. 
York  from  an  executor,  see  Senior  z/.  Ack-  399;  Bobb,  Succession  of,  27  La.  Ann. 
erman,  2  Redf.  (N.  Y.)  156;    Redfield's  344. 

Surr.  Courts,  145;   Freeman  v.  Kellogg,  The  South  Carolina  Act  of  1839  con- 

4    Redf.    218;    Shields    v.    Shields,    60  templates   a   bond   to   be    given    by   an 

Barb.  56.     An  executor  about  to  leave  executor  for  purchases  made  by  him  at 

the  State  should  give  security.     Wood  his  own  sale  of  his  testator's  property. 

V.  Wood,  4  Paige,  299.     And  as  to  the  State  v.  Baskin,  i  Strobh.  35. 

husl)and  of  the  executrix  who  miscon-  ^  See  Cunningham  v.  Souza,  i    Redf. 

ducts  himself,  see  South  Carolina  case  of  Sur.  462.     It  must  be  in  statute  form; 

Pouel  V.  Thompson,  4  Desau.  162.  else  it  has  no  effect  except  as  a  common 

In  Louisiana  an  executor  should  be  law  bond.     77  Me.  157;   §  up,  post. 

required  on  the  expiration  of  his  year  *  Mass.  Gen.  Stats,  c.  93;    Duvall  i>. 

t')   give   security,  or   in   default   thereof  Snowden,  7  Gill  &  J.  430;    Morgan   v. 

disiiiissed    and    a   dative    executor   ap-  Dodge,  44  N.  H.  255.     "  As  many  jier- 

pointed.      Peale  v.  White,  7  La.  Ann.  sons  have  been  ruined  by  giving  bonds 

449.      A   testamentary   executor   domi-  in  this  form,  we  think  it  the   duty  of 

189 


3    139  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

labor  and  expense  of  an  inventory,  reducing  the  penal  sum 
to  the  minimum  of  satisfying  these  claimants  and  reserving 
all  evidence  of  assets  to  himself  ;  and  the  law  thus  indulges 
the  residuary  legatee,  inasmuch  as  it  is  no  concern  of  others 
what  may  be  the  bulk  of  the  fortune  he  acquires,  provided 
their  demands  are  satisfied.  But  the  disadvantage  is  that 
such  a  bond  conclusively  admits  assets  sufficient  for  the  pay- 
ment of  all  debts,  legacies,  and  allowance  in  full,  binding  the 
executor  and  his  sureties  absolutely  in  the  penal  sum,  to  pay 
accordingly,  even  though  the  estate  should  prove  insolvent  ; 
and  hence  an  executor  who  does  not  feel  certain  when  he 
qualifies  that  the  assets  are  ample  for  all  such  demands, 
should  qualify  in  common  form,  so  as  to  limit  his  liability  by 
the  inventory,  as  returned  to  the  court,  and  the  actual  assets.^ 

§  1 39.  Bonds  required  from  an  Administrator  ;  English  Rule.  — 

The  practice  of  taking  bonds  from  administrators,  as  distin- 
guished from  executors,  must  have  prevailed  in  the  English 
spiritual  courts  long  before  the  first  English  colony  was 
planted  in  America.  For  the  statute  21  Hen.  VIII.  c.  5,  §  3, 
directs  the  ordinary  to  take  surety  on  granting  administra- 
tion.^  Before  the  transfer  of  this  spiritual  jurisdiction  to  the 
new  courts  of  probate  in  England,  statute  22  &  23  Car.  II. 

judges  of  probate  always  to  discourage  2  Gray,  404.  The  giving  of  bond  to  pay 
this  kind  of  security,  and  to  take  special  debts  and  legacies  does  not,  as  a  rule, 
care  that  no  such  bond  is  received  in  discharge  the  lien  on  the  testator's  real 
any  case  where  it  is  not  beyond  doubt  estate  for  payment  of  debts,  as  the  Mas- 
that  the  estate  is  solvent."  Per  curiam  sachusetts  statute  provides.  Mass.  Gen. 
in  Morgan  v.  Dodge,  ib.  And  see  Stats,  c.  93,  §  4.  See  Cleaves  v.  Dock- 
Wms.  Exrs.  543;  2  Stra.  1137.  ray,  67  Me.  118,  as  to  the  effect  of  a 
1  Stebbins  v.  Smith,  4  Pick.  97;  Col-  bond  given,  of  this  character,  but  not  in 
well  V.  Alger,  5  Gray,  67;  Duvall  v.  proper  conformity  to  the  statute. 
Snowden,  7  Gill  &  J.  430.  Where  the  A  bond  given  by  an  executrix  who 
bond  to  pay  legacies,  etc.,  is  given,  and  takes  a  life  interest  in  ,  the  personal 
one  sues  to  recover  a  legacy,  the  plain-  property  administered  upon  is  no  con- 
tiff  need  give  no  proof  except  this  bond  tinning  security  to  those  entitled  in 
that  the  executor  has  assets  sufficient  in  remainder  for  their  interest  in  the  prop- 
his  hands.  Jones  z/.  Richardson,  5  Met.  erty;  but  on  due  settlement  of  the  es- 
247.  Nor  can  such  a  bond  be  cancelled  tate  and  final  account  in  the  probate 
or  surrendered  by  the  executor  and  the  court,  with  distribution,  the  condition  of 
bond  in  common  form  substituted,  long  the  bond  is  satisfied.  Sarle  v.  Court  of 
after  it  was  time,  in  the  ordinary  course.  Probate,  7  R.  I.  270. 
to  file  an  inventory.     Alger  v.  Colwell,  ^  Wms.  Exrs.  7th  Eng.  ed.  529. 

190 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND    APMINISTKATOKS.     §    I  39 

c.  10,  served  from  167 1,  and  for  nearly  two  centuries,  to  fully 
detail  what  should  be  the  form  and  condition  of  this  admin- 
istration bond  ;  the  ordinary  bein«^  directed  to  take  "  sufficient 
bonds  with  two  or  more  able  sureties,  respect  being  had  to 
the  value  of  the  estate,  in  the  name  of  the  ordinary."  The 
condition  herein  imposed  upon  the  administrator  was,  to  re- 
turn a  true  inventory  to  the  court  at  or  before  a  specified 
date  ;  to  administer  the  estate  well  and  truly  ;  to  make  a  true 
and  just  account  of  his  administration  ;  to  deliver  and  pay  the 
residue  as  the  judge  should  appoint ;  and  to  render  up  the  let- 
ters in  court,  should  a  will  afterwards  be  presented.^  Under 
the  new  court  of  probate  act,  20  &  21  Vict.  c.  T."],  every 
person  to  whom  administration  is  granted  must  give  bond  to 
the  probate  judge,  in  a  penal  sum  double  the  amount  under 
which  the  estate  and  effects  shall  be  sworn  ;  but  a  wider 
judicial  discretion  is  allowed  than  under  the  former  statute, 
so  that  the  penal  sum  may  be  reduced,  and  the  responsibility 
of  sureties  divided  ;  moreover,  the  requirement  of  a  surety 
or  sureties,  as  well  as  the  general  form  and  condition  of  the 
bond,  are  matters  likewise  confided  to  this  court. ^ 

The  English  court  of  probate  act,  it  is  perceived,  does  not 
insist  upon  sureties  in  an  administration  ;  and  there  are  in- 
stances in  which  the  court  has  accordingly  dispensed  with 

1  Wms.  Exrs.    529,    530,    citing   the  ment   well    and   truly  to  be  made,    we 

language  of  this  act.  bind  ourselves  and  of  us  for  the 

■^  Act  20  &  21  Vict.  c.   77,  §§  80-82;  \vhole,  our  heirs,  executors,  and  admin- 

Wms.  Exrs.  531-533.     The  form  of  ad-  istrators  firmly  by  these  presents.  Sealed 

ministration  bond  required  by  the  pres-  with  our  seals.       Dated  the  day 

ent  rules  of  the   English  probate  court  of  ,  A.D.   18      ."      The  condition 

may  be  seen  in  Wms.  Exrs.  532.     The  then  follows,  preceding  the  execution; 

bond  is  expressed  after  the  usual  form  this  condition  being  in  substance  for  the 

of  bonds,  beginning  "  Know  all  men  by  most  part  like  that  prescribed  in  statute 

these    presents,"    etc.;     expressing    the  22  &  23  Car.  II.  c.  10,  j«/rrt,but  worded 

date;     stating    first    the    penal    sum    to  differently,  and  varying  in  some  material 

be   paid   and    then   the   condition,    and  respects.     As  usual  in  bonds,  this  por- 

being    signed    and    sealed    at  the  end.  tion  begins,  "The  condition  of  this  obli- 

.\.  B.,  C.  D.,  and  E.  F.  (the  administra-  gation  is  such  that  if  the  above-named 

tor  and  his   sureties)    bind    themselves  A.   B.    (reciting  A.   B.  as  administrator 

jointly  and  severally  unto    G.   H.,    the  on  the  estate  of  I.  J.  in  addition)  do" 

judge  of  the  court  of   probate,   in   the  according  to  the  condition   next  stated 

penal  sum  named,  to  be  paid  to  the  said  in   detail,   "  then   this   obligation   to  be 

G.  H.,  or  to  the  judge  of  the  said  coiMl,  void   and  of   none  effect,  or   else  to  re 

for   the   time   being;    "for   which    pay-  main  in  full  force  and  virtue." 

191 


§   139  EXECUTORS    AND    ADMINISTRATORS.  [I'ART    II. 

them  ;  though  only  by  way  of  exception  to  the  rule,  and  at 
all  events  so  as  to  insist  still  upon  a  bond.^  Where  the  ad- 
ministrator is  out  of  England,  the  sureties  must  usually  be 
resident  ;  a  rule  relaxed  latterly,  however.^  If  the  husband 
of  a  married  woman  refuses  to  execute  the  administration 
bond  with  her,  the  court  will  allow  administration  to  her  and 
permit  the  bond  to  be  executed  by  a  third  person  j'*^  and  in 
other  instances  a  third  person  may  intervene  and  furnish 
security.*  Under  a  grant  of  limited  administration,  a  bond 
is  sometimes  taken  in  a  penal  sum  merely  nominal.^ 

Letters  of  administration  will  not  issue  to  a  creditor  except 
on  condition  of  his  entering  into  a  bond  to  administer  rat- 
ably ;  ^  and  as  to  a  stranger  appointed,  the  court  will  require 
special  security,  according  to  circumstances.'^  Where  there 
has  been  an  administration  pendente  lite,  and  the  minor  on 
coming  of  age  takes  upon  himself  the  trust,  he  must  give 
security  as  would  the  administrator  in  the  first  instance.^  In 
cases  of  administration  not  within  the  statute  2i  Hen.  VIII., 
or  where  the  deceased  died  testate,  a  bond  is  co'nditioned  for 
the  due  payment  of  debts  and  legacies ;  ^  and  under  statute 
20  &  21  Vict.  c.  jj,  rules  of  court  provide  for  framing  peculiar 
bonds  appropriate  to  the  grant  pendente  lite,  and  other  limited 
or  special  administrations  ;  two  sureties  being  here  required, 
as  elsewhere,  in  double  the  amount  of  property  to  be  admin- 

^  Cleverly  v.  Gladdish,  2  Sw.  &  Tr.  quired  at  the  instance  of  creditors   to 

335;   Powis,  Goods  of,  34  L.  J.,  P.  M.  give  resident  security.     Noel,  Goods  of, 

&  A.  55.     The  court  allows  a  bond  with  4  Hagg.  207. 

one  surety   under  some  circumstances.  '^  Sutherland,  Goods  of,  31   L.  J.,  P. 

Bellamy,  Goods  of,  L.  T.  33  N.  S.  71.  M.  &  A.  126. 

2  Cf.   O'Hyrne,    Goods  of,    I   Hagg.  *  .See  Ross,  Goods  of,  "L.  R.  2  P.  D. 

316;    Hernandez,  Goods  of,    L.    R.   4  274,  where  the  bond  was  thus  increased 

P.  D.  229;    Houston,  Goods  of,  L.  R.  i  while      the     administrator     had     gone 

P.  &  D.  85;  with  Reed,  Goods  of,  3  Sw.  abroad. 

&  Tr.  439;    Wms.  Exrs.  544.     The  rea-  ^  Bowlby,  Goods  of,  45  L.  J.,  P.  D. 

son  of  this  change  is  that  common-law  A.  100. 

practice  now  permits  of    a  substituted  ^  Brackenbury,  Goods  of,   25  W.  R. 

service    in    the    case    of    non-residents.  698;    Wms.  Exrs.  443. 

As  to  the  justification  of  securities  to  "  Act  20 &  21  Vict.  c.  77,  §  \y,  Wms. 

the  administration   bond,  this  is  at  the  Exrs.  446,  447. 

court's  discretion,  but  with  qualitications  *  Wms.  Exrs.  545;    Abbott  v.  Abbott, 

stated  in  Wms.  Exrs.  545.     A  husband  2  Phillim.  578. 

residing  abroad,  and  administering  on  ^  2  Stra.  II37- 
his  deceased  wife's  estate,  has  been  re- 

192 


CHAP,  v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    I40 

istered  upon.  The  registrar  inquires  into  the  responsibility 
of  the  sureties  offered  by  an  administrator,  and  attests  the 
bond  in  token  of  its  sufficiency.'' 

§  140.  Bonds  required  from  an  Administrator;  Americai 
Practice.  —  American  practice  in  respect  of  probate  bonds  is 
based  upon  English  requirements  under  the  earlier  .statutes 
cited  in  the  preceding  section ;  and  while,  in  all  or  most 
States,  the  form  of  bond  is  carefully  prescribed,  as  seems 
quite  appropriate  to  our  statute  tribunals  which  a  lejicislature 
invests  with  probate  jurisdiction,  Stat.  22  &  23  Car.  II. 
c.  10,  appears  to  have  supplied  the  model.  Thus,  in  Massa- 
chusetts, .the  bond  of  an  original  administrator,  or  of  an  ad- 
ministrator with  the  will  annexed,  binds  him  to  return  an 
inventory  within  the  time  designated  by  law;  to  administer 
according  to  law  all  the  personal  estate  and  the  proceeds  of 
all  real  estate  sold  for  the  payment  of  debts  ;  to  render  regu- 
lar accounts  of  his  administration  ;  to  pay  any  balance  re- 
maining in  his  hands  upon  the  settlement  of  his  accounts 
to  such  persons  as  the  court  shall  direct,  and  to  deliver  his. 
letters  of  administration  into  the  probate  court  in  case  any 
will  of  the  deceased  is  hereafter  proved  and  allowed. ^  For 
administrators  with  the  will  annexed,  and  likewise  administra- 
tors de  bonis  non  with  the  will  annexed,  a  similar  form  is. 
prescribed,  but  with  appropriate  allusions  added  to  the  pay- 
ment of  "legacies."  3  A  special  administrator's  bond  is  con- 
ditioned to  return  an  inventory  within  the  specified  time  ;  to 
account  on  oath  whenever  required  for  all  the  personal  prop- 
erty of  the  deceased  that  shall  be  received  by  him  in  such 
capacity  ;  and  to  deliver  the  same  to  whoever  shall  be  ap- 
pointed executor  or  administrator  of  the  deceased,  or  to  such 
other  person  as  shall  be  lawfully  entitled  to  receive  the  same.* 

^  Wms.    Exrs.    548,    citing    rules    of  Commonwealth,  8  Penn.  St.   loi ;    Fra- 

English  probate  court.  zier  v.  Frazier,  2  Leigh,  642.     But  cf. 

2  Mass.  Gen.  Stats,  c.  94.  Judge  of  Probate  v.  Claggett,  36  N.  H. 

8  lb.     See  Casoni  v.  Jerome,  58  N.  Y.  381. 

315.     The  bond  of  such  administrators  *  lb.  §  7.     Administrators/f«</cv//^/tV<' 

must  conform  to  the  peculiar  conditions  usually  give  bonds,  and  the  legal  validity 

of  a  will,  otherwise  legatees  may  lose  of  such    bonds    is   beyond   doubt.     Re 

their  rights  to  sue  upon  it.     Small  v.  Colvin,  3  Md.  Ch,  278;    Bloomlield  v. 


§    141  EXECUTORS    AND    ADMINISTRATORS,  [PART    IT. 

Here,  as  in  other  States,  local  statutes  relative  to  adminis- 
tration will  be  found  to  suggest  the  varying  forms  appropriate 
to  different  kinds  of  administration,  even  though  no  precise 
form  be  specified  ;  and  probate  tribunals  should  see  that  all 
probate  bonds  conform  to  law,  and  are  correctly  expressed.^ 
Bonds  limited  in  expression  are  not  favored  in  the  United 
States,  any  more  than  limited  grants  of  administration.  But 
as  administrators  do  not  ex  officio  dispose  of  real  estate,  it  is 
sometimes  provided  that  an  administrator  may  be  exempted 
from  giving  bonds  for  the  proceeds  of  such  property,  except 
where  authorized  to  make  such  sales.^  The  public  adminis- 
trator has  the  option  in  some  States  either  to  furnish  a 
separate  bond  for  every  estate  which  he  may  be  called  upon 
to  administer,  or  a  general  bond  for  the  faithful  administra- 
tion of  all  estates  on  which  administration  is  granted  to  him  ; 
and  in  either  case  with  conditions  expressed  appropriate  to 
his  peculiar  functions.^ 

§  141.  Probate  Bonds;  How  Taken.  —  Administration  bonds, 
as  American  codes  usually  provide,  must  be  given  by  the  ad- 
ministrator, with  at  least  two  sufficient  sureties,  in  such  penal 

Ash,  4  N.  J.  L.  314.     Notwithstanding  and    the    bond    used   in    the    probate 

the  exemption  of  executors  favored  in  office  contained  omissions  or  additions 

New  York,  whoever   administers   with  of  importance,  it  was  pronounced  fatally 

will  annexed  must  give  bond,  whether  defective  as  a  statute  bond.      Frye  v. 

legatee,  next  of  kin,  widow,  or  creditor.  Crockett,  77  Me.    157.     A  bond  which 

Brown,  Ex  parte,  2  Bradf.  (N.  Y.)   22.  does  not  conform  to  statute  cannot  be 

As  to  construing  statute  provisions  re-  sued  against  the  surety  of  the  executor 

specting  the  several   conditions  of  an  or   administrator   in   the   name  of  the 

administrator's    bond,    see    I.anier    v.  successor  of  the  judge  to  whom  it  was 

Irvine,  21  Minn.  447;    Hartzell  v.  Com-  given.     lb. 

monwealth,  42  Penn.  St.  453;   Ordinary         ^  Mass.  Gen.  Stats,  c.  94,  §  6;    Hugh- 

V.  Smith,  14  N.  J.  L.  479.     As  to  the  lett  v.  Hughlett,  5  Humph.  453.     And 

condition  to  surrender  the  letters  in  case  see  Salyer  v.  State,  5  Ind.  202. 
a  will  shall  be  proved,  etc.,  see  Hunt  v.         ^  Mass.  Gen.  Stats,  c.  95,  §  7.     See 

Hamilton,  9  Dana,  90.     A  condition  to  Buckley  v.  McGuire,  58  Ala.  226;   State 

"  administer   the    estate    according    to  v.  Purdy,  67  Mo.  89.     In  Alabama  the 

law  "  has  been  construed  to  include  ad-  official  bond  of  the  sheriff  becomes  an 

ministration  according  to  a  will  already  administration  bond,  when  the  adminis- 

admitted  to  probate.     Judge  of  Probate  tration  of  an  estate  is  committed  to  him 

V.  Claggett,  36  N.   H.   381.      But  see  ex  officio,  and  he  and  his  sureties  are 

§  146,  post.  rendered  liable  accordingly.     Payne  v. 

1  Where  a  statute  was  precise   with  Thompson,  48  Ala.    535. 
respect   to   the   several  forms   of  bond 

194 


CHAP,  v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    I4I 


sum  as  the  court  shall  direct ;  double  the  estimated  value  of 
the  estate  to  be  administered  serving  as  the  usual  basis  for 
fixing  the  amount.'  In  this  and  various  other  respects,  the 
same  holds  generally  true  of  executors'  bonds.  A  discretion 
as  broad  as  that  conferred  on  the  new  probate  court  of  England 
by  Parliament  is  not  usually  exercised  by  the  probate  courts 
in  this  country  as  to  administration  bonds.  The  register  or 
clerk  in  some  States  attends  to  the  qualification  by  bond  ; 
more  commonly,  however,  the  judge,  as  to  the  main  particu- 
lars of  security,  his  approval  being  written  at  the  foot  of  the 
bond  in  token  that  the  administrator  has  fully  qualified,  and 
the  letters  being  meanwhile  withheld  by  the  register.^  The 
bond  of  an  administrator  or  executor  runs  in  some  States  to 
the  State ;  in  others,  to  the  judge  of  probate  and  his  succes- 
sors, as  in  the  statute  22  Car.  II.  c.  10.^  If  one  who  has 
applied  to  administer  does  not  qualify  with  sureties  within  a 
reasonable  time,  it  is  the  duty  of  the  court  to  appoint  an- 
other;* and  the  office  of  administrator  is  not  filled  until  the 
bond  is  given. ^     But  where  the  administrator  fully  qualifies, 


^  See  local  codes;  Clarke  v.  Chapin, 
7  Allen  (Mass.)  425;  Tappan  v.  Tap- 
pan,  4  Fost.  (N.  H.)  400;  Bradley  v. 
Commonwealth,  31  Penn.  St.  522;  At- 
kinson V.  Christian,  3  Gratt.  448;  Kidd's 
Estate,  Myrick  (Cal.)  239.  And  see, 
as  to  Louisiana  rule,  Soldini  v.  Hyams, 
15  La.  Ann.  551;  Ferray's  Succession, 
31  La.  Ann.  727.  There  are  circum- 
stances (as  in  ancillary  administration 
for  some  particular  purpose)  where  a 
small  penal  sum  is  appropriate.  Piquet, 
Re,  5  Pick.  65.  The  security  required 
should  be  for  no  more  property  than 
that  on  which  administration  is  granted 
in  the  State.  Normand  v.  Grognard, 
17  N.  J.  Eq.  425.  See  as  to  taking  a 
bond  without  sureties,  Jones  v.  Gordon, 
2  Jones  Eq.  352.  A  disputed  claim 
not  probably  enforceable  may  be  ignored 
in  fixing  the  amount.  3  Dem.  427.  Or 
property  transferred  by  the  decedent 
fraudulently  or  otherwise.  3  Dem.  548. 
Where  a  will  gives  the  executor  full 
power  to  deal  with  real  as  well  as  per- 
sonal estate,  the   penalty  of  his   bond 


should  be  reckoned  accordingly.  Ellis 
V.  Witty,  63  Miss.  117.  The  local  stat- 
ute sometimes  permits  the  penalties  to  be 
reduced  under  an  administration  bond 
{e.g.  with  will  annexed)  if  the  intet- 
ested  parties  assent.  Or  even  so  that 
sureties  may  be  dispensed  with.  See  3 
Dem.  53  ;  supra  (as  to  executors),  §  137. 

In  some  States  the  court  or  register  is 
liable  in  damages  if  he  neglects  to  take 
a  bond  according  as  the  statute  directs. 
McRae  v.  David,  5  Rich.  (S.  C.)  Eq. 
475;    Penn.  Act,  March  15,  1832,  §  27. 

2  Mass.  Gen.  Stats,  c.  loi ;  Austin  v. 
Austin,  50  Me.  74;  supra,  §  118.  Ap- 
proval in  writing  is  not  an  essential  in 
all  States.     Jones  v.  Dixon,  21  Mo.  538. 

"  Johnson  v.  Fuquay,  i  Dana,  514; 
Vanhook  v.  Barnett,  4  Dev.  L.  268. 
In  Missouri  the  approval  of  the  court  is 
not  indispensable  to  the  validity  of  an 
administration  bond.  State  v.  Farmer, 
54  Mo.  539. 

*  Crozier  v.  Goodwin,  i  Lea,  125. 

*  Feltz  V.  Clark,  4  Humph.  79; 
O'Neal  V.  Tisdale,  12  Tex.  40, 


195 


§    142  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

giving  bond  according  to  law,  the  decree  of  the  court  may  be 
considered  his  sufficient  appointment  whether  he  receives  his 
formal  letters  or  not ;  for  the  letters  issue  as  of  the  same 
date,  and  if  not  actually  delivered,  are  to  be  deemed  ready 
for  delivery.^ 

A  probate  bond  which  divides  up  the  penal  sum  among  the 
sureties  is  not  void  ;  but  this  form  of  bond  appears  to  be 
regarded  with  disfavor  by  American  courts  in  the  absence  of 
legislation  which  expressly  sanctions  it,  like  the  English  act 
now  in  force.^ 

§  142.  Probate  Bonds ;  Irregularities,  etc.,  attending  Execution, 
How  far  Available.  —  Courts  disincline  to  treat  a  probate 
bond  as  void,  to  the  detriment  of  an  estate,  by  reason  of 
informalities  and  omissions  attending  its  execution,  provided 
a  regular  execution  was  obviously  intended  ^  by  principal  and 
sureties.  Thus,  inserting  the  name  of  the  intestate  in  a 
blank,  where  that  of  the  administrator  should  be,  has  been 
treated  as  a  mistake  apparent  on  the  face  of  the  instrument ; 
and  omissions  of  this  sort  are  sometimes  supplied  in  the 
blank  by  construing  the  decree  of  appointment  and  the  bond 
together.*  Even  where  the  principal  and  his  sureties  exe- 
cuted a  blank  bond,  the  qualification  thereon  and  appointment 


1  State   V.    Price,    21    Mo.   434.       A  been   sanctioned.      lb.      With  the   in- 

judge  cannot  reject  arbitrarily  the  bond  creasing  wealth  of  this  country,  and  the 

offered,  but  he  may  require  sureties  to  growing  value  of  estates  brought  neces- 

justify  if  there  is  reasonable   doubt  of  sarily  into  the  probate  court  for  settle- . 

their  responsibility.     48  Mich.  318.  ment,  it  seems   to  this  writer  desirable 

^  Act  20  &  21  Vict.  c.  77,  cited  supra,  that  bonds  of  this  character  should  be 

Hence,  an  executor's  bond,  approved  by  authorized,   as  they  now  so   frequently 

the  judge,  in  which  the  sureties  are  each  are  in  the  case  of  public  officials.     One 

bound   in   half  the  sum  for  which   the  should  not  be  asked  to  risk  utter  ruin 

principal  is  bound,  was  held  in  Massachu-  for  the  sake  of  a  friend.      Companies 

setts  not  void  for  that  cause,  but  binding  organized    for   this  surety  business   are 

on    the    obligors   and   sufficient  to  give  also  desirable. 

effect  to  the  executor's  acts.      Baldwin  ^  Moore  v.  Chapman,  2  Stew.  (Ala.) 

V.  Standish,  7  Cush.  207.     But  the  court  466.     See  also  Luster  v.  Middlecoff,  8 

further  intimated  that,  had  appeal  been  Gratt.  54. 

made  from  the  decree  of  the  judge  of  ^  State  v.   Price,   15   Mo.   375.      But 

probate    approving    the    bond    in    that  judgment  at  law  upon  a  blank  bond  is 

form,  such  a  departure  from  the  usual  refused.     Cowling  v.  Justices,  6  Rand, 

course  of  proceeding  would   not  have  349. 

196 


CHAP,  v.]      BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    I42 

are  held  good  until  revocation  of  the  letters  ;  ^  and  though 
the  executor's  or  administrator's  bond  were  accepted  without 
sureties  or  upon  ill  compliance  with  the  statute,  the  appoint- 
ment itself  may  be  valid,  as  made  de  facto  and  voidable 
only.^  An  administration  bond  is  not  void  because  its 
condition  varies  from  that  required  by  statute,  when  it  was 
voluntarily  given,  and  is  not  made  void  by  statute,  and 
prescribes  no  more  than  the  law  requires  ;  ^  though  the  omis- 
sion of  suitable  conditions  therein  may  rule  out  remedies  for 
a  corresponding  breach,  especially  as  against  the  sureties.^ 
Obligors  on  a  probate  bond  who  have  executed  it  and 
suffered  the  bond  to  go  upon  record,  may,  on  general  prin- 
ciples, be  estopped  from  afterwards  denying  its  validity  or 
availing  themselves  of  irregularities,  or  setting  up  their 
private  arrangements  as  to  the  manner  in  which  the  bond 
should  be  filled  out  and  used,  to  the  injury  of  innocent 
interested  parties  who  were  led  to  rely  upon  the  security.^ 


1  Spencer  v.  Cahoon,  4  Dev.  L.  225. 
For  sureties  to  execute  for  a  blank 
amount  imports  an  authority  to  the 
principal,  to  whose  care  they  confide  the 
bond,  to  fill  in  such  a  penal  sum  as  the 
court  may  require.  Such  a  practice, 
however,  is  exceedingly  careless,  and  no 
probate  couit  should  sanction  it.  Leaving 
the  date  of  the  bond  blank,  however,  in 
order  that  the  principal  may  fill  it  up 
according  to  the  date  of  probate  decree, 
is  quite  common;  nor  does  this  course 
appear  objectionable. 

2  Jones  V.  Gordon,  2  Jones  (N.  C.) 
Eq.  352;  Mumford  v.  Hall,  25  Minn. 
347;  Herriman  v.  Janney,  31  La.  Ann. 
276;   Maxwell,  Re,  37  Ala.  362. 

^  Ordinary  v.  Cooley,  30  N.  J.  L.  179. 

*  See  Small  v.  Commonwealth,  8 
Penn.  St.  loi  ;•  Frazier  v.  Frazier,  2 
Leigh,  642;  Roberts  v.  Calvin,  3  Gratt. 
358;  Rose  z/.  Winn,  51  Tex.  545;  Bur- 
nett V.  Nesmith,  62  Ala.  261;  Frye  v. 
Crockett,  77  Me.  157;  §  140. 

^  Franklin  v.  Depriest,  13  Gratt.  257; 
Cohea  v.  State,  34  Miss.  179;  Field  7/. 
Van  Cott,  5  Daly  (N.  Y.)  308,  WoIfT  7'. 
Schaeffer,  74  Mo.  154.     One  who  signs 

I 


the  probate  bond  may  retract,  if  others 
intended  do  not  sign,  or  the  principal 
fails  to  make  good  his  promises,  but  he 
must  do  so  before  the  bond  is  returned 
and  the  court  and  innocent  parties  have 
placed  reliance  upon  it.  4  La.  Ann. 
545;  10  La.  Ann.  612.  Not  even  a 
surety's  allegation  that  he  signed  on 
condition  that  another  surety  should  be 
procured,  and  that  the  judge  of  probate 
was  so  informed,  can  avail  him,  where 
there  is  no  evidence  that  the  bond  was 
delivered  as  an  escrow.  Wolff  v. 
Schaeffer,  74  Mo.  154.  And  still  less 
where  the  judge  was  not  informed. 
Berkey  v.  Judd,  34  Minn.  393.  But  qu. 
whether,  in  States  where  two  sureties  to 
a  probate  bond  are  requisite,  the  surety 
may  not  presume  that  the  judge  will  not 
accept  the  bond  unless  another  surety 
executes.  It  is  plain,  however,  that  one 
who  executes  as  surety  a  probate  bond, 
without  ascertaining  in  what  manner 
blanks  are  filled,  or  what  other  signa- 
tures added  before  the  bond  becomes 
approved  and  filed,  trusts  his  principal, 
in  many  instances,  farther  than  prudence 
warrants.     Sureties  on  a  public  admin- 

97 


§    143  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

But  alterations  after  execution,  and  irregularities  to  which 
the  bondsmen  themselves  were  not  privy,  but  rather  they 
to  whom  the  security  was  given,  and  which  the  bondsmen 
cannot  be  said  to  have  adopted  by  open  acts  or  inexcusable 
silence,  may  release  them  from  responsibility.  And  in  such 
connection  a  judge  or  register  is  greatly  to  be  blamed  who 
changes  in  material  respects  or  mutilates  the  bond  submitted 
to  him,  without  the  knowledge  of  all  the  parties  executing 
it ;  ^  or  who,  without  assent  of  the  sureties,  directs  that  the 
bond  one  gives  as  special  administrator  of  an  estate  shall 
stand  over  for  his  bond  as  general  administrator.^  It  follows 
that  a  bond  may,  under  peculiar  circumstances,  bind  the 
principal  but  not  the  sureties  ;^  also  that  the  judge  in  whose 
name  the  bond  runs  should  regard  himself  as  obligee  in  the 
interest  and  for  the  protection  of  all  parties  interested  in  the 
estate,  and  sanction  nothing,  out  of  complaisance  to  his 
appointee,  to  impair  the  security  required  in  their  behalf. 
And  furthermore  the  judge  should  see  that  the  bond  conforms 
to  the  law  in  its  provisions. 

§    143.     "Whether  a  Probate  Bond  may  bind  as  a  Common-law 

Bond.  —  It  has  been  ruled  that,  though  the  appointment  of 
an  administrator  be  void  for  want  of  jurisdiction,  inasmuch 
as  the  intestate  neither  resided  nor  left  assets  within  the 
county  at  the  time  of  death,  a  bond  given  by  the  adminis- 
trator, while  deriving  no  validity  from  the  statute,  may  be 
good,  nevertheless,  at  common  law."*  And  the  fact,  that  one 
who  was  improperly  appointed  acts  under  the  letters  granted 
to  him,  is  held  to  render  him  and  his  sureties  liable  on  their 

istrator's  bond  cannot  set   up  that  his  was  made  with  the  knowledge  of  the 

appointment  was  irregular.   16  Lea,  321.  principal,  but  not  of   the  sureties,   the 

In  Louisiana,  where  the  amount  is  left  same  bond  was  executed  by  two  addi- 

blank  in  the  bond,  it  is  fixed  by  the  code  tional  sureties,  who  did  not  know  the 

at  one-fourth  over  the    inventory,  bad  circumstances  of  the  alteration,  and  was 

debts  deducted.     35   La.  Ann.  920.     A  then    approved   by   the   judge.     It  was 

bond  with  one  surety  where  the  law  re-  held  that  the  bond  was  binding  upon 

quired  two  is  not  void.     68  Ala.  107.  the  principal,  but  not  upon  any  of  the 

'  In   Howe  v.  Peabody,  2  Gray,  556,  sureties.  Howe  v.  Peabody,  2  Gray,  556. 

a  probate  bond  executed  by  a  principal  2  Fisher,  Re,  15  Wis.  511. 

and    two    sureties  was    altered    by    the  ^  Howe  v.  Pealiody,  2  Gray,  556. 

judge  of  probate  so  as  to  increase  the  *  McChord  v.  Fisher,  13  B.  Mon.  193. 
penal  sum.     After  this  alteration,  which 

198 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.      §    I44 

bond    to    the    parties   interested    in    the    estate,   on    general 
principle.^ 

^  144.  SuflSciency  of  Probate  Bonds,  as  to  the  Security  and 
the  Parties  offered. —  It  is  not  of  itself  a  sufficient  objection 
to  sureties  offered,  that  they  do  not  reside  in  the  county 
where  letters  are  applied  for.^  Non-residents,  moreover, 
may,  in  some  parts  of  the  United  States,  be  taken  as 
sureties,  the  court  exercising  its  own  discretion  as  to  their 
sufficiency;^  though  the  codes  elsewhere  expressly  require 
that  the  indispensable  sureties  shall  be  inhabitants  of  the 
State  ;^  and  the  question,  whether  local  practice  of  the  com- 
mon-law courts  permits  of  a  substituted  service  or  not,  in  the 
case  of  non-residence,  may  be  thought  material  in  this  con- 
nection.^ There  are  local  statutes  which  prohibit  certain 
parties  —  attorneys,  and  counsel,  for  instance  —  from  being 
sureties  on  administration  bonds  :  a  provision,  however,  held 
merely  directory,  and  so  as  not  to  vitiate  a  bond,  approved 
by  the  court,  upon  which  one  of  the  prohibited  class  is 
placed,  nor  to  justify  a  party  so  executing  in  pleading 
exemption.^  Sureties  are  usually  permitted  to  prove  their 
sufficiency  under  their  own  oath,  as  in  the  qualifying  of  bail; 
and  it  then  devolves  upon  the  opponent  to  show  the  insuffi- 
ciency by  cross-examination  or  evidence  produced  aliunde? 

In  American  practice,  sureties,  to  save  themselves  trou- 
ble, frequently  execute  a  probate  bond  in  anticipation  of  the 
executor's  or  administrator's  appointment ;  their  principal 
holding  the  instrument  until  ready  to  qualify.  Such  a  bond 
should  be  drawn  up  with  an  ample  penal  sum,  and  the 
principal  should  come  prepared  to  establish  its  sufficiency 
to  the  satisfaction  of  the  court  ;  and  care  should  be  taken, 

1  Shaker's  Appeal,  43  Penn.  St.  83;  *  Mass.  Gen.  Stats,  c.  loi,  §  12. 
Cleaves  v.  Dockray,  67  Me.  118.  And  There  may  be  a  third  person,  an  inhab- 
see  Frye  v.  Crockett,  77  Me.  157.  An  itantof  another  State,  if  two  sureties  are 
administrator's  bond,  though  not  ap-  resident.  Clarke  z'.  Chajiin,  7  .Mien,  425. 
proved  by  the  probate  court,  may  be  ^  See  Wms.  Exrs.  544;  Hernandez, 
good  as  a  voluntary  bond.  State  v.  Goods  of,  L.  R.  4  P.  D.  229. 
Creusbauer,  68  Mo.  254.  *  Hicks  v.   Chouteau,    I2    Mo.    341; 

2  Barksdale  v.  Cobb,  16  Ga.  13.  Wright  v.  Schmidt,  47  Iowa,  233. 

3  Jones  V.  Jones,  12  Rich.  L.  623.  '  Ross  v.  Minis,  15  Miss.  121. 

199 


§    146  EXECUTORS    AND    ADMINISTRATORS.  fPART    II. 

moreover,  that    no    material    change    is    made   in    the    bond 
without  reference  anew  to  all  the  sureties.^ 

§  145.  Co-Ezecutors  and  Co-Administrators;  Joint  and  Sep- 
arate Bonds.  —  On  a  joint  probate  bond,  co-executors  or  co-ad- 
ministrators become,  as  a  rule,  jointly  liable  as  sureties  for 
the  acts  and  defaults  of  one  another  ;2  and  jointly  as  princi- 
pals, moreover,  to  indemnify  the  surety  who  has  been  sub- 
jected to  liability  for  the  default  of  one  of  them  during  the 
continuance  of  the  joint  office.^  And  though  one  or  more  of 
the  co-executors  or  co-administrators  should  die,  it  is  to  be 
presumed  that  the  bond  remains  a  security  for  the  perform- 
ance of  duty  by  the  other,  unless  proper  steps  are  taken  to 
have  the  bond  made  inoperative  for  future  defaults.^  But 
as  to  the  sureties  in  a  joint  administration  bond,  it  is  held 
that  they  are  not  liable  to  one  administrator  for  the  defaults 
of  the  other.^ 

The  real  tenor  of  a  bond  must,  however,  determine  greatly 
its  legal  effect,  on  the  usual  theory  of  principal  arid  surety, 
though  not  without  reference  to  the  law  in  pursuance  of  which 
it  was  made.  In  Massachusetts  and  some  other  States,  the 
statute  authorizes  the  court,  in  case  joint  executors  or  admin- 
istrators are  appointed,  to  take  either  a  separate  bond  with 
sureties  from  each,  or  a  joint  bond  with  sureties  from  all.^ 

§  146.  Probate  Bond;  "What  Property  is  covered;  What  Func- 
tions included,  etc.  —  The  liability  of  a  surety  on  an  executor's 
or  administrator's  bond  is  limited  to  the  assets  which  rightfully 
come,  or  ought  to  have  come,  to  the  principal's  hands  in  the 
State  or  coun'  ry  in  which  he  was  appointed  and  qualified.'^ 

^  A  person  who  writes  to  the  probate  cf.  Brazer  v.  Clark,  5   Pick.  96;    Com- 

judge  that  he  will  become  surety  if  A.  B.  monwealth  v.  Taylor,  4  Phil.  (Pa.)  270. 

is  appointed,  is  not  so  liable  unless  he  ^  Haell    v.  Blanchard,  4    Desau.    21. 

executes  the  bond.    New  Orleans  Canal  See  Elliott  v.  Mayfield,  4  Ala.  417. 

Co.  V.  Grayson,  4  La.  Ann.  51 1.  ^  Mass.  Gen.  Stats,  c.  lOl,  §  14.    Two 

2  Litterdale  v.   Robinson,    2    Brock,  sets  of  sureties  are  properly  made  parties 

159;     Brazer    v.    Clark,    5    Pick.    96;  to  one  suit,  where  it  is  necessary  to  show 

Moore  z/.  State,  49  Ind.  558;  76  Va.  85.  whether  both  sets  are  liable   or  which 

8  Dobyns  v.  McGovern,  15  Mo.  662.  set.     65  Tex.  152. 

*  Stephens  v.  Taylor,  62   Ala.   269;  '  Fletcher   v.    Weir,    7    Dana,    345; 

Dobyns  v.  McGovern,  15  Mo.  662.    But  Governor  v.  Williams,  3  Ired.  L.  152. 

200 


CHAP,  v.]  BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  I46 

Thi.s  will  be  better  understood,  when,  in  the  course  of  the  pres- 
ent treatise,  the  subject  of  administration  assets  is  hereafter 
discussed.  The  proceeds  of  such  assets,  arising  out  of  sales, 
conversions,  change  of  investment,  and  transfers  in  general, 
also  profit  and  interest,  are  properly  thus  included.^  So,  too, 
effects  left  in  the  executor's  or  administrator's  hands,  and 
property  which  has  come  to  his  possession  or  knowledge  and 
remains  unaccounted  for ;  ^  and  this  even  though  he  received 
the  property  before  his  appointment  ;  since  the  liability  ex- 
tends to  assets  received  before  as  well  as  after  the  execution 
of  the  bond.^  If  an  executor  or  administrator  is  able  to  pay 
a  debt  due  by  him  personally  to  the  estate,  his  sureties  will 
be  liable  with  him,  unless  he  discharges  it.'^  Ordinarily,  as 
will  be  seen  hereafter,  administration  does  not  extend  to  the 
real  estate  of  the  deceased  ;  and  hence  rents  received  after 
the  death  of  an  intestate  may  not  be  thus  included,  nor  the 
proceeds  of  lands  sold,^  for  which  last  an  administrator  usually 
procures  a  license  and  gives  a  special  bond.  But  statutes 
regulate  this  whole  subject,  and  ultimately,  according  to  the 
modern  tendency,  an  administrator  or  executor  may  incur  an 
official  responsibility  for  rents  and  profits  or  for  the  proceeds 
of  real  estate,  so  as  to  involve  the  sureties  on  his  general 
bond  for  his  default.^ 

Probate   bonds    in    these  days    are    usually  so  worded  as 

»  Watson  V.  Whitten,  3  Rich.  (S.  C.)         ^  phiUips  v.  Rogers,  12  Met.  (Mass.) 

224;    Verret   v.  Belanger,   6   La.   Ann.  405;    Wade  v.   Graham,   4  Ohio,    126; 

109.  Stong  V.  Wiliison,   14  Mo.   116;   Judge 

2  Bouhvare  tA  Hendricks,  23 Tex.  667.  of  Probate  v.   Heydock,  8  N.   II.  491. 

8  Gottsberger  z/.  Taylor,  19N.  Y.  150;  An   executor   receiving    the    residue    in 

Goode    V.    Buford,    14    La.  Ann.    102;  trust  for  charities,  but  giving  no  bond 

Choate  t/.  Arrington,  Ii6  Mass.  552.  as   trustee    nor  turning  it  over  to  the 

*  Piper's  Estate,  15  Penn.  533.  Money  trust,   his   bondsmen    are   liable  for  it. 

set  down  in  the  inventory  as  part  of  the  White  v.  Ditson,  140  Mass.  351.     And 

estate  must  in  some  way  be  accounted  see   14  R.   L  495.     As  to  liability  for 

for.     Goode   v.    Buford,    14   La.   Ann.  proceeds   of    real   estate   sold,   see   ib. 

102;    Wattles  V.  Hyde,  9  Conn.  10.  See,   also,  Dovvling   v.  Feeley,  72    Ga. 

6  Cornish    v.   Wilson,    6    Gill,    299;  557;     Reherd   v.    Long,    77    Va.    839; 

Hartz's    Appeal,    2    Grant     (Pa.)    83;  Mann  v.  Everts,  64  Wis.  372;   78  Va. 

Commonwealth  v.  Higert,  55  Penn.  St.  720.     Liability  may  arise   for  the  pro- 

236;    Hutchenson  v.  Pigg,  8  Gratt.  220;  ceeds  of  life  insurance  policies  not  used 

Reno  V.  Tyson,  24  Ind.  56;    Oldham  v.  in  paying  debts.       16    Lea,   321.     The 

Collins,   2  J.   J.   Marsh.   49;    Brown   v.  surety  on  the  bond  of  an  insolvent  cxe- 

Brown,  2  Harr.  (Del.)  51.  cutor  who  owed  his  testator  is  not  liable 

201 


§  146 


EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 


to  embrace  all  the  general  functions  which  the  executor  or 
administrator  may  be  required  to  perform  in  pursuance  of 
his  trust  ;  both  towards  the  court,  and  with  respect  of  the 
creditors,  legatees,  distributees,  and  all  others  interested.' 
So,  too,  may  a  general  administration  bond  be  held  to  cover 
all  the  duties  of  an  administrator,  as  well  in  the  sale  of  land, 
where  occasion  arises  for  the  court's  license,  as  in  the  settle- 
ment of  the  personalty.2  But  if  an  administration  bond 
contain  no  clause  securing  the  interest  of  distributees,  the 
sureties,  as  some  States  hold,  will  not  be  liable  for  failure  or 
refusal  to  distribute.^  The  securities  are  not  usually  liable  for 
the  acts  of  an  executor  or  administrator  in  meddling  with 
property  to  which  he  has  or  acquires  no  official  right  ;^  nor 
are  they  with  respect  to  property  held  or  acts  done  by  him 
in  some  other  distinct  capacity.^ 


for  that  debt.  Lyon  v.  Osgoocl,  58  Vt. 
707.  Unless  it  could  have  been  realized 
with  due  diligence.  85  Tenn.  486.  Where 
one  was  induced  fraudulently  to  become 
a  surety  in  such  a  case,  all  the  charge  is 
his  defence.  Campbell  v.  Johnson,  41 
Ohio  St.  58S.  The  surety  on  an  admin- 
istrator's replevin  bond  has  a  right 
against  the  sureties  on  the  administra- 
tion bond.     77  Mo.  175. 

1  Woodfin  V.  McNealy,  6  Fla.  256; 
People  V.  Miller,  2  111.  83;  Hazen  v. 
Darling,  2  N.  J.  Eq.  133. 

2  Clarke  v.  West,  5  Ala.  1 1 7.  See 
Worgang  r*.  Clipp,  21  Ind.  119. 

*  Arnold  v.  Babbitt,  5  J.  J.  Marsh. 
665.  The  condition  "to  well  and  truly 
administer  according  to  law  "  has  rela- 
tion to  the  inteiost  of  creditors  and  not 
of  distributees.  Barbour  v.  Robertson, 
I  Litt.  93.  And  correspondingly  as  to 
"legatees,"  in  a  bond  taken  for  admin- 
istration under  a  will,  see  .Small  v.  Com- 
monwealth, 8  Penn.  St.  loi ;  Frazier  v. 
Frazier,  2  Leigh,  642.  But  of.  Peoples 
V.  Peoples,  4  Dev.  &  B.  L.  9;  Judge 
of  Probate  v.  Claggett,  36  N.  H.  381. 
"Due  administration  of  the  estate"  in- 
cludes the  payment  of  the  balance  to 
the  persons  entitled.  Cunningham  v. 
Souza,  I   Redf.  (N.  Y.)  462.     And  see 


Sanford  v.  Oilman,  44  Conn.  461.  Stat- 
utes are  differently  construed.  It  was 
the  English  rule  of  construction,  under 
the  statute  22  &  23  Car.  H.  c.  10,  that 
the  condition  to  "  well  and  truly  admin- 
ister according  to  law  "  did  not  include 
the  neglect  or  refusal  to  distribute; 
though  it  would  be  a  breach  that  the 
administrator  had  converted  the  assets 
to  his  own  use.  Wms.  Exrs.  540,  541. 
A  condition  prescribed  by  New  York 
statutes  requires  the  fiduciary  to  "  obey 
all  orders  of  the  surrogate  touching  the 
administration  of  the  estate."  This  claim 
is  construed  in  Scofield  v.  Churchill,  72 
N.  Y.  565. 

*  McCampbell  v.  Oilbert,  6  J.  J.  Marsh. 
592.  And  see  Douglass  v.  New  York, 
56  How.  (N.  Y.)  Pr.  178. 

*  Barker  v.  Stanford,  53  Cal.  451; 
Sims  V.  Lively,  14  B.  Mon.433;  Reeves 
V.  .Steele,  2  Head,  647.  As  to  the  same 
person  being  guardian  or  trustee  and 
administrator,  see  §  247,  post ;  Schoul. 
Dom.  Rel.  §  324.  Where  an  executor 
is  named  trustee  under  the  will,  he  is 
chargeable  as  executor  on  his  bond  as 
such  until  he  has  given  bond  as  trustee, 
and  charged  himself  with  the  property 
as  trustee,  administration  being  the 
prior  duty.     Prior  z/.  Talbot,  10  Cush.  I. 


202 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.      §    1 48 

Sureties  on  a  probate  bond,  it  is  held,  are  liable  for  defaults 
of  the  principal  occurring  after  their  own  death,  especially  if 
they  expressly  bind  in  terms  their  own  executors  and  admin- 
istrators.^ 

§  147.  Release  or  Discharge  of  Sureties.  — American  Statutes 
frequently  provide  that  the  surety  to  a  probate  bond  may, 
upon  his  petition,  be  discharged  from  all  further  responsibility, 
if  the  court  deems  it  reasonable  or  proper,  after  due  notice  to 
all  persons  interested ;  ^  whereupon  other  security  will  be 
required  of  the  executor  or  administrator,  in  default  of  which 
his  letters  may  be  revoked.^  The  principal's  failure  to  per- 
form duties  as  the  bond  prescribes  is  good  ground  for  pre- 
senting such  petition.'* 

Release  of  the  sureties  or  the  bond,  must,  however,  be  a 
judicial  act  regularly  performed.  And  where  an  executor's 
or  administrator's  bond  has  been  delivered  into  probate  cus- 
tody and  duly  accepted,  the  subsequent  erasure  of  their  names 
found  upon  the  bond  will  not  release  their  sureties.^  But  the 
intention  of  the  court  to  discharge  an  old  bond  and  take  a 
new  one  by  way  of  substitute  will  take  due  effect.^ 

§  148.    New   or  Additional   Bonds;   -wrhen   and   how  required. 

—  A  new  bond  will  be  required  of  an  executor  or  administra- 
tor, not  only  (as  local  acts  often  provide)  when  a  former 
surety  is  discharged  upon  his  request,  leaving  the  probate 
security  inadequate,  but  in  general  wherever  it  appears  that 
the  sureties  are  insufficient  or  the  penal  sum,  under  existing 

Where  one  is  both  executor  and  trustee  v.   Stevens,   3   Redf.   (N.  Y.)    507 ;    27 

under  a  will,  he  should,  of  course,  give  La.  Ann.  344.     The  statute  discretion 

separate  bonds  for  each  trust.     85  Ind.  of  the  court  to  discharge  a  surety  from 

312.  liability   (unlike   that  of  requiring  new 

*  Mundoriff   v.    Wangler,    44   N.    Y.  and  additional  security)  appears  to  be 

Super.  495;    2  Dem.  469.  strictly  construed.     Jones  v.   Ritter,  56 

2  Gen.    Mass.    Stats,    c.    loi,    §    16;  Ala.   270;    Wood  v.  Williams,  61   Mo. 

Lewis  V.  Watson,  3  Redf.  (N.  Y.)  43;  63;    People  v.  Curry,  59  111.  35.     Such 

Valcourt  v.  Sessions,  30  Ark.  515;  John-  proceedings  are  summary,  and  the  record 

son  V.  Fuquay,  I    Dana,  514;   Norris  v.  should  show  the  essential  facts.     16  La. 

Fristoe,   3    La.   Ann.   646;     McKay  v.  652;   63  Md.  14. 

McDonald,  8   Rich.    331;    Harrison  v.  *  lb. 

Turbeville,    2    Humph.   241;    Jones   v.  *  Sanders  t'.  Edwards,  29  La.  .\nn.  696. 

Ritter,  56  Ala.  270;    2  Dem.  201,  251.  ^  Brown  z/.  Weatherby,  71  .Mo.  152. 

As  to  citation  in  such  a  case,  see  Stevens  <•  Brooks  v.  Whitmore,  139  Mass.  356 

203 


§    148  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

circumstances.  The  court,  in  conformity  with  statute,  may 
at  any  time,  on  the  petition  of  any  person  interested  in  the 
estate,  require  of  the  representative  a  new  bond  with  a  surety 
or  sureties,  and  in  such  penal  sum  as  shall  appear  just.^  And 
a  decree  requiring  an  additional  bond  is  held  to  be  within  the 
jurisdiction  of  the  court  of  probate,  even  though  no  petition 
to  that  effect  was  first  presented.^  Sureties,  themselves,  ac- 
cording to  the  practice  of  certain  States,  may,  instead  of  peti- 
tioning to  be  discharged,  ask  for  what  is  termed  counter-secur- 
ity.^ If  the  principal  fails  to  give  the  new  or  additional  bond 
within  such  reasonable  time  as  the  court  may  have  ordered, 
he  will  be  removed,  and  some  other  person  who  can  qualify 
appointed  in  his  stead.^  It  is  quite  desirable  that  the  discre- 
tion of  the  probate  court  in  requiring  bonds  should  extend  to 
all  changes  of  circumstances  as  to  the  representative  himself, 
the  sureties,  or  the  amount  of  the  estate. 

Whenever  a  new  bond  has  been  required  of  the  executor 
or  administrator,  by  way  of  substitution,  the  sureties  in  the 
prior  bond  are  usually  treated  as  liable  for  all  breaches  of 
condition  committed  by  him  before  the  new  bond  is  executed 
and  accepted  by  the  court  ;  ^  but  as  exempt  from  liability  for 
his  defaults  committed  afterwards.^  Where,  however,  a  new 
or  additional  bond  is  given  by  the  executor  or  administrator 
for  the  performance  of  his  trust,  the  second  bond  relates  back, 

1  Mass.  Gen.  Stats,  c.  loi,  §  15;  435.  An  order  requiring  the  adminis- 
Loring  v.  Bacon,  3  Cush.  465.  As  trator  to  give  a  new  bond  affects  his 
where  it  is  shown  that  the  aggregate  right  to  administer,  and  his  appeal 
property  of  the  sureties  is  not  equal  to  therefrom  without  a  bond  does  not 
that  of  the  personal  estate  in  the  hands  suspend  the  order.  Bills  v.  Scott,  49 
of  the  administrator.     Renfro  v.  White,  Tex.  430. 

23  Ark.  195.     Or  that  one  or  more  of  ^  Mass.    Gen.    Stats,    c.    loi,    §    18; 

the  sureties  has  died.     State  v.  Stroop,  McMeekin  v.    Huson,    3    Strobh.    327. 

22  Ark.  328.  It  is  held  that  in  case  of  release  and 

2  Ward  V.  State,  40  Miss.  108;  Gov-  substitution  the  second  set  of  sureties 
ernor  v.  Gowan,  3  Ired.  L.  342.  Stat-  become  principally  liable  to  the  extent 
utes  may  well  confer  authority  upon  of  their  bond;  and  then  if  they  prove 
the  court  to  require  new  or  additional  insufficient,  the  first  set  to  the  date  of 
security  at  the  court's  own  instance.  their    release.      Morris    v.    Morris,    9 

^  Caldwell  v.  Hedges,  2  J.  J.  Marsh.  Heisk.  814.     As  to  an  error  of  balance 

485;    Brown  z'.  Murdock,  16  Md.  521;  shown  where  the  surety  petitioned  for 

Russell  V.  McDougal,  11  Miss.  234.  further  security,  see  Bobo  v.  Vaiden,  20 

*  Mass.    Gen.    Stats,    c.    loi,   §    17;  S.  C.  271. 

National  Bank  v.   Stanton,  116   Mass.  ^  State  v.  Stroop,  22  Ark.  328;   Lin- 

204 


CHAP.   V.J     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.     §    I49 

SO  that  the  sureties  on  the  new  and  original  bonds  shall  all  be 
regarded  as  parties  to  a  common  undertaking.  To  distribu- 
tees and  other  parties  protected  thereby,  they  became  respon- 
sible to  the  extent  of,  and  as  among  themselves,  in  proportion 
to  the  penalties  of  their  respective  bonds  ;  ^  and  they  will  all 
share  the  benefit  of  counter-securities  given  to  one  or  more 
of  them,  unless  it  was  originally  agreed  that  such  securities 
should  operate  for  some  exclusive  benefit.^  Co-sureties  may 
stand  liable  together  towards  the  court  and  those  for  whose 
benefit  the  obligation  was  taken,  but  as  among  themselves 
unequally  responsible.  Where  it  is  not  clear  that  the  new 
bond  was  properly  taken  by  the  court  in  lieu  of  the  former 
one,  and  so  intended,  the  legal  effect  must  be  to  furnish  ad- 
ditional securities  for  the  performance  of  the  principal's 
duties  under  his  original  obligation.^  New  bonds  may  be 
needful  sometimes  to  cover  newly  discovered  property  of  the 
decedent.* 

§  149.  Lost  and  Missing  Probate  Bonds.  —  Since  probate 
bonds  are  usually  copied  into  the  probate  records,  in  Ameri- 
can practice,  the  record  may  serve  as  secondary  evddence 
for  all  needful  purposes  where  the  original  bond  is  missing 
from  the  files.  Local  acts  provide,  in  some  instances,  for 
a  substitution,  by  judicial  decree,  where  the  official  bond 
together  with  the  record  thereof  has  been  lost  or  destroyed.^ 

gle  V.  Cook,  32  Gratt.  262;    Russell  v.  bonds.     Lingle  v.  Cook,  32  Gratt.  262. 
McDougall,     II     Miss.    234;     State   v.  ^  gnicks   v.    Powell,    2    Strobh.    Eq. 
Fields,  53  Mo.  474;   Perry  v.  Campbell,  196;    Wood  v.   Williams,  61    Mo.  63; 
10  W.  Va.  228;   68  Ala.  7,  21;   36  La.  Wolff  z'.  Schaeffer,  74  Mo.  154. 
Ann.  414.     As  to  the  presumption  on  ^  Woods   v.    Williams,    61    Mo.    63; 
lapse   of  time  that  a  default  occurred  People  v.  Curry,  59  111.  35 ;   Lacoste  v. 
after    the    substitution,   see    Phillips   v.  Splivalo,  64  Cal.  35. 
Brazeal,    14  Ala.    746.      For  as  to  the  A  new  bond  given  by  a  public  ad- 
liability   of  sureties   in   the   second   or  ministrator  held  cumulative,  and  not  to 
substituted  bond,  the  gravamen  of  the  discharge    the    old    sureties.       10   Mo. 
breach  may  be,  not  a  prior  misapplica-  App.  95.     The  remedies  for  breach  of 
tion,  but  the  failure  to  pay  over.     Pink-  an    executor's   or  administrator's   bond 
staff  V.   People,  59  111.   148;    Morris  v.  will  be    discussed   hereafter.     And  see 
Morris,  9  Ileisk.  814.  general  works  on  bonds,  and  the   rela- 

^  Loring    v.    Bacon,    3    Cush.   465;  tion  of  principal  and  surety. 

Enicks    v.    Powell,    2    Strobh.    Eq.  196.  *  36  La.  Ann.  414. 

Thus  is  it  held  as  to  a  cause  of  action  ^  See  Tanner  v.  Mills,  50  Ala.  356. 
arising  between  the  giving  of  the  two 

205 


§    150  EXECUTORS    AND    ADMINISTRATORS.  fpART    II. 


CHAPTER   VI. 

REVOCATION    OF    LETTERS  ;     NEW    APPOINTMENT,    ETC. 

§  I  50.    Appeal  from  Decree  of  Probate  Court ;  Mandamus,  etc. 

—  Appeal  from  the  decree  of  the  county  or  district  probate 
court  is  regulated,  in  England  and  the  United  States,  by 
local  statutes,  varying  from  time  to  time,  which  need  not 
be  examined  here  at  length.  While  the  spiritual  jurisdic- 
tion obtained,  as  to  probate  and  administration,  in  the 
mother  country,  appeal  lay,  through  the  ecclesiastical  hie- 
rarchs,  to  what  was  known  as  the  court  of  delegates,  but 
afterwards,  instead,  to  the  judicial  committee  of  the  privy 
council.^  Since  that  jurisdiction  has  become  temporal  in  its 
nature,  however,  under  the  Court  of  Probate  Act  pf  1857,^ 
the  right  of  final  appeal  from  a  decree  of  the  court  of  probate 
has  been  transferred  to  the  House  of  Lords.^ 

In  most  American  States  the  supreme  judicial  court  of 
common  law  is  also  the  supreme  court  of  probate  and  equity, 
and  hence,  a  ready  appeal  is  taken  from  the  county  pro- 
bate court,  by  any  one  aggrieved  by  its  decree.  Indeed,  in 
certain  matters  pertaining  to  the  estates  of  deceased  per- 
sons, especially  where  the  probate  of  a  will  involving  some 
considerable  property  is  contested,  the  decree  of  the  surro- 
gate or  county  judge  of  probate  appears  often  procured  pro 
forma  only,  the  full  trial  being  had  on  appeal,  where  a  jury 
may  better  be  empanelled,  and  the  case  finally  determined 
upon  the  law  and  evidence  before  a  more  august  tribunal,  as 
seems  befitting  to  the  gravity  of  the  controversy.* 

To  such  higher  tribunal,  therefore,  intermediate  or  final, 

1  Wms.  Exrs.  571,  572,  citing  stats.  *  Supra,  §  I.     This  right   to  appeal, 

24  Hen.  VIII.  c.  12;   25  Hen.  VIII.  c.  being   a   statutory  right,    can    only    be 

19;    3  "^  4  Wm.  IV.  c.  92.  secured  by  a  strict  compliance  with  the 

2  20  &  21  Vict.  c.  77.  statute    conditions.      Dennison   v.  Tal- 

8  Wms.  Exrs.  574.  mage,  29  Ohio  St.  433. 

206 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  I  50 

any  person  aggrieved  by  the  order,  sentence,  decree,  or 
denial  of  the  court  or  judge  taking  primary  jurisdiction  of 
the  case,  may  appeal.  This  appeal  has  sole  reference,  how- 
ever, to  the  order  or  decree  in  question,  as,  for  instance,  in 
admitting  such  a  will  to  probate  and  issuing  such  letters 
testamentary,  or  in  granting  such  letters  of  administration  ; 
though  interlocutory  orders  may  thus  be  considered  as  well 
as  the  final  decree  complained  of.  The  appeal,  in  fact,  gives 
the  appellate  court  no  jurisdiction  to  proceed  further  in  the 
settlement  of  the  estate;  but  its  judgment  on  appeal  being 
upon  such  decree,  order,  sentence,  or  denial  of  the  court 
below,  it  is  certified  to  that  tribunal,  where  further  proceed- 
ings are  had  accordingly,  or  stopped,  as  if  it  had  made  no 
decision.  The  judgment  of  the  appellate  tribunal  is  to  be 
carried  into  effect  by  the  probate  court,  whose  jurisdiction 
over  the  cause  and  the  parties  is  not  taken  away  by  the 
appeal.  1 

Mandamus  from  the  superior  temporal  courts  was  a  rem- 
edy formerly  invoked  against  courts  spiritual  in  English 
practice ;  as,  for  instance,  to  compel  probate  of  a  will  or  a 
particular  grant  of  administration,  or  in  case  of  an  improper 
appointment  or  repeal. ^  But  by  modern  practice,  in  the 
United  States  at  least,  since  the  whole  jurisdiction  vests  in 
the  temporal  courts,  appeal  has  become  the  regular  mode  of 
procedure  before  a  higher  tribunal,  wherever  the  grievance 
was  based  upon  a  decree  of  the  probate  court  ;''^  though 
mandamus  or  prohibition  might  still  lie  if  the  probate  judge 
refused  to  entertain  a  proper  petition  or  to  decide  at  all  upon 
the  case,  or  if  he  obstructed  an  appeal  from  his  decision.'* 

1  Metcalf,  J.,  in  Dunham  v.  Dunham,  ^  Wms.  Exrs.  235,  387,  435,  and  cases 

16  Gray,  577;    Curtiss  v.  Beardsley,   15  cited;    2  Sid.  114;    i  Stra.  552.     In  case 

Conn.  523.     Where,  upon  reversing  on  of  an   undue   grant  of  administration, 

appeal  the  decree  of  the  surrogate  ad-  which  had  not  already  passed  the  seals, 

mitting  a  will  to   probate,   the  case  is  a  prohibition  issued  instead,     i   Freem. 

sent  back  for  a  re-trial  of  a  question  of  372;    Wms.  Kxrs.  585. 

fact,  the  powers  of  executors  continue  ^  State  v.  Mitchell,   3  Brev.   (S.  C.) 

until  a  final  determination  of  such  issue  520. 

and  a  revocation  by  the  surrogate  of  the  ♦State   v.   Castleberry,    23   Ala.    85; 

probate.     Thompson  z/.  Tracy,  60  N.  Y.  Gresham  v.  Pyron,  17  Geo,  263;   Wil- 

174'  liams  v  Saunders,  5  Coldw.  60. 

207 


§151  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

§  151.     Appeal   from   Decree   of  Probate;   Subject   continued. 

—  The  right  to  appeal  depends  upon  the  relation  of  the 
appellant  to  the  subject-matter  of  the  probate  decree  or 
order.  A  person  is  aggrieved,  within  the  meaning  of  our 
practice  acts,  when  his  rights  are  concluded  or  in  some  way- 
affected  by  such  decree  or  order ;  nor  is  it  essential  that 
he  was  directly  connected  with  the  proceedings  below.  A 
legatee  or  distributee,  a  surety  on  the  bond,  another  admin- 
istrator, a  guardian  or  a  trustee,  a  creditor,  any  and  all  of 
them  may,  under  various  circumstances,  exercise  the  right 
to  appeal  from  the  probate  of  a  will  or  the  issue  of  letters  to 
a  particular  appointee.^  Appeal,  according  to  the  practice 
of  some  States,  as  fully  detailed  by  the  local  statute, 
should  be  claimed  in  writing,  and  notice  given  at  the  pro- 
bate office,  together  with  the  reasons  of  appeal,  within  a 
specified  brief  time  (such  as  thirty  days)  after  the  decree  com- 
plained of ;  copy  being  served  meanwhile  on  the  appointee 
and  adverse  party.  The  appeal  should  be  entered  at  the 
next  convenient  rule  day  of  the  supreme  court  (or  in  about 
sixty  days).  The  supreme  court  may  exercise  a  further 
discretion  in  revising  the  matter,  within  a  much  longer 
period  (such  as  one  or  two  years)  where  the  petitioner  was 
abroad  at  the  time  of  the  decree,  or  where  the  omission  to 
seasonably  claim  and  prosecute  an  appeal  was  otherwise 
excusable.  After  an  appeal  is  claimed  and  notice  given  at 
the  probate  registry,  all  proceedings  in  pursuance  of  the 
order  or  decree  appealed  from  will  cease  until  the  determina- 
tion of  the  supreme  court  is  had  ;  but  if  the  appellant  in  writ- 
ing waives  his  appeal  before  entry  of  the  same,  proceedings 
may  be  had  in  the  probate  court,  and  the  appointment  or  pro- 
bate may  stand  as  if  no  appeal  had  been  taken.  Where,  how- 
ever, an  appellant  fails  to  enter  and  prosecute  his  appeal,  the 

^  See  Livermore  v.   Bemis,   2  Allen,  578.      The  designated  executor,  vested 

394;    Noithampton  v.  Smith,   II    Met.  with  discretion,  may  appeal  from  a  re- 

390.      Where   an   appeal    fails   merely  fusal   of  probate,   notwithstanding    the 

because  the  appellant  cannot  prove  that  opposition  of  the  beneficiaries  who  have 

he  is  a  party  entitled  to  appeal,  the  pro-  made  a  private  settlement.     Cheever  v. 

bate  decree  stands  as  if  not  appealed  Judge,  45  Mich.  6. 
from.    Cleveland  v.   Quilty,    128   Mass. 

208 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  1 52 

supreme  court  may,  at  the  instance  of  any  pcr.son  interested, 
affirm  the  former  sentence,  or  make  such  other  order  as  law 
and  justice  require.  On  appeal,  issues  of  fact,  such  as  the 
due  execution  of  a  will,  may  be  tried  by  a  jury.^  Appeal  to 
a  higher  tribunal  to  reverse  the  sentence  by  which  letters  or 
a  probate  had  been  granted  offers  thus  a  ready  means  of 
revocation,  where  the  grant  or  the  probate  was  improper.^ 

A  supreme  court  of  equity  has  sometimes  taken  jurisdic- 
tion to  set  aside  letters  of  administration  or  a  probate  fraudu- 
lently procured.^ 

§  152.    Revocation  by  Proceedings  in  the   Probate   Court. — 

The  probate  court  has  always  exercised  a  plenary  jurisdiction 
in  revoking  or  vacating  its  own  decrees  improperly  rendered  ; 
thereby  correcting  errors  such  as  arise  out  of  fraud  or  mis- 
take, cancelling  letters  which  had  been  issued  without  juris- 
diction, revoking  an  appointment  granted  to  the  wrong  party, 
and  admitting  a  subsequent  will  or  codicil  notwithstanding 
the  improper  probate  of  an  earlier  one.  Such  jurisdiction  is 
available  after  the  time  of  appealing  from  the  decree  is  past. 
"This  power,"  observes  Gray,  J.,  "does  not  make  the  decree 
of  a  court  of  probate  less  conclusive  in  any  other  court,  or  in 
any  way  impair  the  probate  jurisdiction,  but  renders  that 
jurisdiction  more  complete  and  effectual,  and  by  enabling  a 
court  of  probate  to  correct  mistakes  and  supply  defects  in  its 
own  decrees,  better  entitles  them  to  be  deemed  conclusive 


1  Mass.  Gen.  Stats,  c.  117;  Peters  v.  that  in  case  of  an  appeal  from  a  decree 
Public  Administrator,  I  Bradf.  (N.  Y.)  appointing  a  special  administrator  he 
200;  .f/^/rrt,  Part  I.;  Thompson z/. Tracy,  shall  proceed  in  the  execution  of  his 
60N.  Y.  174;  Worthington  z'.  Gittings,  duties  until  the  supreme  court  directs 
56  Md.  542.  The  practitioner  should  otherwise.  Mass.  Gen.  .Stats,  c.  94. 
consult  the  local  statute  and  procedure  ^  Thus,  in  Georgia,  a  court  of  equity 
of  his  own  State  on  this  general  subject,  has  entertained  jurisdiction  to  sot  .aside 
English  rules  of  court,  regulating  ap-  letters  of  administration  procured  on 
peals  from  probate  court,  may  be  com-  fraudulent  representation  of  intestacy, 
pared  in  Wms.  Exrs.  574.  The  discre-  and  to  compel  the  wrongful  administra- 
tion of  the  judge  below,  notwithstanding  tor  and  his  sureties  to  account  with  the 
a  claim  of  appe.nl,  appears  by  these  rules  lawful  executor.  Wallace  v.  Walker,  37 
to  be  more  favorably  considered.     lb.  Ga.  265.     But  see  Cooper  v.  Cooper,  5 

2  From  the  nature  and  necessities  of  N.  J.  Eq.  i. 
the  case,  however,  it  is  usually  provided 

209 


§    152  EXECUTORS   AND    ADMINISTRATORS.  [PART    II. 

upon  Other  courts.  There  is  no  reason  to  apprehend  that 
such  a  power  may  be  unjustly  exercised.  It  is  vested  in  the 
same  court  which  is  intrusted  with  the  original  jurisdiction 
over  all  probates  and  instruments."^  Moreover,  proceedings 
for  such  revocation  or  change  in  the  probate  decree  are  con- 
ducted upon  the  same  principle  as  the  original  petition ; 
notice  issues  as  before  to  all  parties  in  interest,  and  the  ex- 
ecutor or  administrator  is  cited  before  the  judge,  to  show 
cause  why  the  original  probate  or  administration  should  not 
be  revoked  and  his  letters  surrendered  accordingly.  And 
from  the  decree  thus  rendered,  an  aggrieved  party  may  take 
an  appeal,  as  in  other  instances.^ 

Due  course  of  procedure  before  the  probate  court  requires 
that  the  court  shall  revoke  the  old  probate  or  administration 
before  or  simultaneously  with  granting  a  new  one.  This  has 
usually  been  the  practice  in  the  English  ecclesiastical  courts  ;^ 
though  numerous  authorities,  English  and  American,  have 
maintained  that  if  administration  was  committed  to  the  wrong 
party  and  then  to  the  right,  the  latter  grant  repealed  the 
former  without  any  formal  decree  of  revocation.^  For  which 
is  to  be  styled  the  wrong  party  and  which  the  right,  we  may 
ask,  unless  the  probate  record  shows  in  some  way  that,  as 
between  the  two  grants,  such  an  issue  was  joined.?  And  if 
not  joined,  by  such  a  showing,  and  passed  upon,  the  readier 
presumption  is  that  the  court  made  the  latter  grant  impru- 
dently, unmindful  that  the  former  was  outstanding.  In  all 
cases,  however,  where  the  first  administration   is   revoked, 


1  Waters  v.  Stickney,  12  Allen,  15,  first  appointed  disappears  and  cannot  be 
and  cases  cited.  served  with  a  citation  should  not  fatally 

2  lb.  And  see  Wms.  Exrs.  571 ;  obstruct  the  revocation  of  an  improper 
Curtis  V.  Williams,  33  Ala.  5 70;  8  grant  and  the  issue  of  new  letters  to  the 
Blackf.  203;  Thompson  v.  Hucket,  2  rightful  person.  Langley,  Goods  of,  2 
Hill  (S.  C.)  347;     Wilson  v.  Hoes,  3  Robert,  407. 

Humph.    142;     State    v.    Johnson,    7         *  Wms.  Exrs.  574;   Owen,  50.   Where 

Blackf.  529;    Cleveland  v.  Quilty,   128  letters  were  granted  in  the  wrong  county, 

Mass.  578;   Scott  V.  Crews,  72  Mo.  261 ;  by  reason  of  a  last  residence  of  decedent 

Munroe  v.  People,  102  III.  406;   Harri-  in  another  county  of  the  same  State,  the 

son  V.  Clark,  87  N.  Y.  572.  court  of  rightful  jurisdiction  should  re- 

3  Wms.  Exrs.  574,  575;  Cro.  Eliz.  quire  a  revocation  of  the  former  letters 
315;  Toller,  126;  White  z/.  Brown,  7  T.  before  granting  letters.  Coltart  v. 
B.  Monr.  446.    The  fact  that  the  party  Allen,  40  Ala.  155, 

210 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  I  53 

the  second  stands  good,  though  granted  after  the  grant  of  the 
first  and  before  the  repeal  of  it.^ 

§  ^53-  G-rounds  upon  w^hich  Revocation  is  Proper.  —  Among 
the  grounds  upon  which  revocation  is  proper,  may  be  stated 
the  following :  That  the  letters  testamentary  or  of  adminis- 
tration were  issued  without  jurisdiction,  inasmuch  as  the  party 
was  still  living,  or  his  last  residence  and  situs  of  property 
conferred  the  whole  jurisdiction  elsewhere.^  That  the  will 
was  probated  through  fraud  or  error,  or  that  some  later  will 
or  codicil  should  be  admitted.^  That  general  administration 
was  granted,  whereas  the  deceased  died  testate.*  That  ad- 
ministration with  will  annexed  was  granted  regardless  of  the 
executor's  rights.^  That  administration  was  granted  earlier 
than  the  statute  permits  to  one  of  a  class  not  preferred 
therein  ;  or  that  it  was  granted  to  another  person  than  the 
widow  or  the  next  of  kin,  regardless  of  the  legal  priorities.^ 
That  administration  was  granted  to  a  disqualified  person  or 
one  not  entitled  at  all."  That  the  preferred  party's  renunci- 
ation was  forged  or  fraudulently  procured.^  That  the  judge 
of  probate  who  granted  the  letters  was  an  interested  party. ^ 

1  Com.  Dig.  Administrator  B;  Wms.  ^  Mills  v.  Carter,  8  Blackf.  203; 
Exrs.  575.  Under  the  New  Jersey  stat-  Williams'  Appeal,  7  Penn.  St.  259; 
ute,  where  letters  of  administration  are  Thompson  v.  Hucket,  2  Hill  (S.  C.) 
revoked  for  informality  or  illegality,  new  347;  Wms.  E.\rs.  578;  Stebbins  v. 
letters  may  be  granted  to  the  same  per-  Lathrop,  4  Pick.  33;  Pacheco,  Estate 
son,  where  such  grant  is  proper,  without  of,  23  Cal.  476;  Rollin  v.  Whipper,  17 
a    new  application  or    notice.     Delany  S.  C.  32;   40  N.  J.  Ef].  184. 

V.  Noble,  3  N.  J.  Eq.  559.  ■?  Thomas  v.  Knighton,  23  Md.  318; 

2  Morgan  v.  Dodge,  44  N.  H.  255;  Harrison  v.  Clark,  87  N.  Y.  572;  13 
Napier,  Goods  of,  I  Phillim.  83;  Hooper     Phila.  296. 

z/.  Stewart,  25   Ala.  408;    Harrington  v.  *  Thomas  7'.   Knighton,  33  Md.  318; 

Brown,  5  Pick.  519,  522;    Burns  v.  Van  Wilson  v.  Hoes,  3   Humph.    142.     And 

Loan,  29  La.  Ann.  560.     See  Coltart  v.  see  as  to  renunciation  upon  a  condition 

Allen,  40  Ala.  155.  not  fulfilled,   Rinehart  v.    Rinehart,  27 

3  Wms.  Exrs.  576;  Waters  z/.  Stickney,  N.  J.  Eq.  475. 

12  Allen,  4;  Hamberlin  v.  Terry,  i  Sm.         ®  Coffin  v.  Cottle,  5  Pick.  4S0;    Echuls 

&  M.  Ch.  589.    But  see  64  Tex.  266.  v.  Barrett,  6  Ga.  443.     It  is  held  that 

*  Edelen  J'.  Edelen,  10  Md.  52;  Bulk-  an  administrator  may  accept  the  oflice 
ley  V.  Redmond,  2  Bradf.  (N.  Y.)  281 ;  of  probate  judge  without  vacating  the 
77  Ala.  323;  Dalrymple  v.  Gamble,  66  trust  of  administrator.  Whitworth  v. 
Md.  298.  Oliver,    39    Ala.    286.      But   sembU   he 

*  Thomas  v.  Knighton,  23  Mo.  318;  should  resign  or  be  removed  if  the  trust 
Patton's  Appeal,  51  Penn.  St.  465;  is  within  the  same  county  jurisdiction, 
Baldwin  v.  Buford,  4  Yerg.  16.  and  remains  unfultilled. 

211 


§    153  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

In  general,  that  there  was  essential  fraud,  error,  or  mistake 
in  the  original  decree  and  appointment. ^  If  the  grant  may 
be  considered  voidable  rather  than  void,  revocation  becomes 
eminently  proper  in  such  cases. 

It  would  appear  that  a  county  probate  court  may,  of  its 
own  motion,  institute  and  carry  on  proceedings  to  revoke 
its  irregular  decrees.  Yet,  as  a  rule,  the  private  party  who, 
as  of  right,  seeks  revocation  of  an  appointment,  because 
some  preferred  party  was  passed  over,  should  be  of  that 
class  himself,  and  in  a  position  to  profit  by  such  revoca- 
tion.2  That  the  letters  testamentary  or  of  administration 
have  irregularly  issued  without  the  notice  or  citation  of 
proper  parties,  as  required  by  law,  is  a  cause  for  revoking 
or  vacating  the  decree,  on  the  application  of  those  en- 
titled to  such  notice.  And  the  same  holds  true  where  a 
will  is  admitted  to  solemn  probate,  in  similar  disregard 
of  statute  formalities.^  It  should,  however,  be  borne  in 
mind  that  the  right  to  be  cited  in  does  not  necessarily  render 
an  appearance  indispensable  ;  and  that  in  granting*  adminis- 
tration, the  failure  of  one  entitled  to  the  trust  in  preference 
may  often  be  concluded  by  his  waiver  or  the  failure  to  season- 
ably apply  or  to  qualify.^  A  regular  appointment  should  not 
be    revoked  because  parties  in  priority,  once   concluded  by 

1  Hamberlin  v.  Terry,  I  Sm.  &  M.  2  Brev.  167.  And  see  Hardaway  v. 
Ch.  589;  Com.  Dig.  Administrator  B;  Parham,  27  Miss.  103;  Kelly  v.  West, 
Proctor  V.  Wanmaker,  i  Barb.  Ch.  302;  80  N.  Y.  139.  A  debtor  cannot  thus 
Broughton  v.  Bradley,  34  Ala.  694.  proceed,  i  Dem.  163.  Where  admin- 
Wherever  the  appointment  was  without  istration  was  granted  in  the  belief  that 
authority  of  law  it  may  be  revoked,  there  was  no  will,  revocation  may  be 
McCabe  v.  Lewis,  76  Mo.  296.     Special  ex  mero  motu.     77  Ala.  323. 

causes  of  revocation  are  suggested  by  ^  Wms.  Exrs.  578;    i  Lev.  305;  Fitz- 

local  statutes.     4  Dem.  394.  gib.  303;  Kerr  v.  Kerr,  41  N.  Y.  272; 

W'here  probate  of  a  will   has   been  Lawrence's    Will,    3    Halst.    Ch.    215; 

granted  in  common  form,  the  executor  Waters  v.  Stickney,  12  Allen,  15;   Wal- 

may  be  afterwards  cited  to  prove  it  in  lace   v.   Walker,    37   Ga.   365;    McCaf- 

solemn   form;    and  if  he  caimot  suffi-  frey's  Estate,  38  Penn.  St.  331 ;    Morgan 

ciently   prove   it,   the   probate    will   be  v.  Dodge,  44  N.  H.  260. 

revoked.      Wms.    Exrs.    575;     supra,  *  Stoker  v.  Kendall,    Busb.    (N.  C.) 

§   66.     But   see   Floyd  v.   Herring,   64  L.  242;   Cold  z/.  Dial,  12  Tex.  100;   and 

N.  C.  409.  see  supra,  §    112.     The  jurisdiction  to 

2  Mecklenburgh  v.  Bissell,  2  Jones  revoke  in  such  cases  held  discretionary 
(N.  C.)  L.  387;  Edmundson  v.  Roberts,  under  the  code  in  Hutchinson  v.  Priddy, 
I  How.  (Miss.)  217;  De  Lane's  Case,  12  Gratt.  85. 

212 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  1 54 

their  own  acts  or  laches,  seek  without  special  good  reason  to 
assert  such  priority  afterwards.^  A  judge  may  select  one  or 
more  from  the  class  primarily  entitled  ;  but  having  exercised 
his  discretion,  he  ought  not  to  revoke  without  good  cause.''* 
That  the  occasion  for  a  limited  or  special  administration 
has  ceased  to  exist  is  good  cause  for  revocation  or  supersc- 
dure.^  The  failure  to  qualify  by  bond  in  the  first  instance 
appears  in  some  States  to  be  regarded  as  cause  for  revoca- 
tion ;  *  but  this  is  only  for  convenience,  and  the  more  correct 
view  is,  that  the  condition  precedent  failing,  there  is  no  ap- 
pointment to  be  revoked,  but  rather  a  supplementary  decree 
of  suitable  tenor  to  be  entered.^ 

§  I  54.  Removal  of  Executor  or  Administrator.  —  Under  Stat- 
utes now  in  force  in  most  of  the  United  States,  the  probate 
court  is  empowered  to  make  a  vacancy  in  the  fiduciary  office 
for  sundry  good  causes  specified,  and  to  appoint  a  successor. 
Thus,  in  Massachusetts,  if  an  executor  or  administrator  be- 
comes insane,  or  proves  otherwise  incapable  of  discharging 
his  trust,  or  for  any  reason  "evidently  unsuitable"  therefor, 
he  may  be  removed,  notice  of  such  proceedings  having  been 
given  to  him  and  to  all  parties  interested.*^  Moreover,  inas- 
much as  no  one  can  be  appointed  without  first  qualifying  by 
furnishing  a  suitable  bond,  provision  is  made  for  the  summary 
removal  of  an  executor  or  administrator  who,  upon  being 
ordered  by  the  probate  court  to  give  a  new  bond,  does  not 


1  lb.      Nor   where   letters    issued   to  *  .See  Wingate  v.  Wooten,  5   Sm.  «& 
a   competent   person    will   they  be  re-  M.  245. 

voiced  upon   the   subsequent   claim   of  ^  But  it  might  happen  that  the  court 

a  person  who  was  incompetent  at  the  had  imprudently  and  irregularly  issued 

time  of  the  grant.     Sharpe's  Appeal,  87  the  letters  without  waiting  for  a  proper 

Penn.    St.     163.     And    see    Ehlen    v.  bond,  in  which  case  revocation  or  va- 

Ehlen,    64    Md.    360.      This    becomes  eating  the  appointment  would  be  suita- 

often  a  matter  of  statute  construction,  ble,  new  letters  issuing  when  the  requi- 

See  Dietrich's  Succession,  32  La.  Ann.  site  bond  was  fded.     See  Bell,  C.  J.,  in 

127.  Morgan  v.  Dodge,  44  N.  \\.  261.     Re- 

2  Brubaker's   Appeal.     98  Penn.   St.  moval  may  sometimes  reach   this  case. 
21.  See  10  La.  Ann.  94;  95  N.  C.  353;  §  155. 

*  Morgan  v.  Dodge,  44  N.  H.  260;  ^  Mass.  Gen.  Stats,  c.   loi,   §    2;    c. 

54  Md.  359.  100,  §  8. 

213 


§  154 


EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 


seasonably  comply  with  the  order.^  And  inexcusable  negli- 
gence to  file  an  inventory  or  settle  his  accounts  in  court,  after 
having  been  duly  cited,  is  sometimes  specified  as  proper  cause 
for  removal. 2 

It  is  perceived  that  statutes  of  this  character  confer  upon 
the  court,  and  most  appropriately  too,  a  broad  discretion  as  to 
the  various  instances  which  may  justify  removal.  When- 
ever, from  any  cause,  the  executor  or  administrator  becomes 
unable  to"*perform  properly  the  substantial  duties  of  his  office, 
he  maybe  regarded  as  "evidently  unsuitable."^  Unsuitable- 
ness  may  be  inferred  also  from  wilful  misconduct,  or  even 
from  obstinate  persistency  in  a  course  plainly  injurious  to  the 
interests  of  the  estate,  and  impairing  its  value  ;  and  in  fact,  as 
a  rule,  any  unfaithful  or  incompetent  administration,  which 
will  sustain  an  action  on  one's  probate  bond,  should  be  suf- 
ficient   cause   for   his    removal.'*     Causes  of  unsuitableness, 


1  Mass.  Gen.  Stats,  c.  loi,  §  17; 
Morgan  v.  Dodge,  44  N.  H.  261 ;  De 
Flechier,  Succession  of,  i  La.  Ann.  20; 
Davenport  v.  Irvine,  4  J.  J.  Marsh.  60; 
McFadgen  v.  Council,  81  N.  C.  195; 
Bills  V.  Scott,  49  Tex.  430. 

^  See  Mass.  Gen.  Stats,  c.  loi,  §  2; 
C.  99,  §  26. 

2  See  Thayer  v.  Homer,  1 1  Met.  104. 
Under  the  Texas  act  of  1876,  a  probate 
judge  may  of  his  own  motion  remove 
one  for  failing  "  to  obey  any  order  con- 
sistent with  this  act,"  etc.  Wright  v. 
McNatt,  49  Tex.  425.  As  to  insanity, 
see  68  Cal.  281;   4  Dem.  81. 

*  As  where,  the  estate  being  insol- 
vent, the  executor  or  administrator  re- 
fuses to  take  steps  for  recovering  prop- 
erty fraudulently  conveyed,  when  the 
creditors  offer  to  indemnify  him.  An- 
drews V.  Tucker,  7  Pick.  250.  Or  for 
his  fraud  and  corrupt  dealings.  28  La. 
Ann.  784.  Or  where  he  gives  an  un- 
authorized and  final  preference  in  pay- 
ing or  distributing  (though  this,  semble, 
should  be  a  case  of  gross  injustice,  and 
not  where  some  reasonable  favor  was 
bestowed  at  discretion).  Foltz  v.  Prouse, 
17  III.  487.     Or  where  he  is  ignorant 

2 


of  his  duties  and  liable  to  be  imposed 
upon.  Emerson  v.  Bowers,  14  Barb. 
658.  Or  where  he  has  other  interests 
in  positive  conflict  with  the  official  trust. 
Thayer  v.  Homer,  11  Met.  104;  Hussey 
V.  Coffin,  I  Allen,  354.  Waste,  negli- 
gence, and  mismanagement  are  good 
grounds  for  removal  as  well  as  fraud. 

3  Nev.  93.  Or  habitual  drunkenness. 
83  Ind.  501.  Or  misconduct.  104  N. 
Y.  103.  And  see  Peale  v.  White,  7  La. 
Ann.  449;  Reynolds  v.  Zink,  27  Gratt. 
29;  64  Md.  399;  4  Dem.  227.  So  is 
the  unwarranted  refusal  to  prosecute 
claims  on  behalf  of  the  estate,  especially 
if  the  office  was  obtained  by  inducing 
those  in  interest  to  believe  that  he 
would  prosecute.  Kellberg's  Appeal, 
86  Penn.  St.  129.  Or  for  squandering 
the  estate.  Newcomb  v.  Williams,  9 
Met.  525.  As  to  removing  an  executor 
for  "  improvidence "  under  the  New 
York   code,  see    Freeman   v.    Kellogg, 

4  Redf.  (N.  Y.)  218.  And  see  40 
Hun,  291;  Gray  v.  Gray,  39  N.  Y.  Eq. 
332.  Refusal  to  bring  a  suit  which 
may  reasonably  be  supposed  to  bring  in 
assets  for  creditors  has  been  treated 
as  ground  for  removing  an  administra- 

14 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC. 


§  154 


operating  at  the  time  of  the  appointment,  but  disclosed  more 
fully  in  the  course  of  administration,  and  upon  experiment, 
may  afford  the  ground  of  one's  sulxsequent  removal  from 
office;  the  point  here  being,  not  that  the  unsuitableness 
operated  when  the  appointment  was  made,  but  that  it  oper- 
ates at  the  time  of  the  complaint.^ 

Non-residence  or  the  permanent  absence  of  an  executor 
or  administrator  is  made  a  specific  cause  of  removal  by  our 
local  statutes  under  various  circumstances ;  as  where  such 
fiduciary  neglects,  on  citation,  to  render  his  accounts  and 
settle  the  estate ;  or  where  one  moves  out  of  the  State 
without  having  settled  his  accounts,  or  without  appointing 
an  attorney,  or,  as  held  in  some  States,  if  he  be  a  non-resi- 
dent at  all.2      On  the  marriage  of  a  sole  executrix  or  adminis- 


ter. 137  Mass.  547.  And  as  to  mis- 
conduct with  regard  to  his  bond,  see  3 
Dem.  542;  63  Tex.  396.  So  where 
one  fraudulently  induces  his  beneficiary 
to  sell  out  to  him.     37  N.  Y.  Eq.  535. 

But  it  is  no  cause  for  removal  that 
the  executor  or  administrator  declines 
to  aid  heirs  or  others  outside  the  line 
of  his  official  duty.  Richards  v.  Sweet- 
land,  6  Cush.  324.  Nor  that  doubtful 
claims  are  not  prosecuted,  especially  if 
the  estate  be  small.  Myrick  Prob.  97. 
Nor  that  he  makes  no  returns,  when 
there  is  nothing  to  return.  Harris  v. 
Seals,  29  Ga.  585.  Nor  where  his  de- 
lays are  satisfactorily  explained.  An- 
drews V.  Carr,  2  R.  I.  117.  Nor,  as 
ruled,  simply  that  he  cannot  read  or 
write  (cf.  supra,  §  104);  Gregg  v. 
Wilson,  24  Ind.  227.  And  see  i  Dem. 
577.  Opportunity  to  file  accounts  and 
inventory  should  be  given  if  this  be  the 
grievance  alleged;  the  court  ordering 
him  to  account.  28  La.  Ann.  800.  Cf. 
77  N.  C.  360.  As  to  his  bankruptcy, 
see  Dwight  v.  Simon,  4  La.  Ann.  490; 
Cooper  V.  Cooper,  5  N.  J.  Eq.  9.  As  to 
transactions  by  the  executor  or  admin- 
istrator, not  perhaps  justifiable,  but  held 
insufficient  cause  for  his  removal,  see 
Cai-penter  v.  Gray,  32  N.  J.  Eq.  692 ; 
18  S.   C.   396;    Killam   v.  Costley,  52 

2 


Ala.  85.  Conflicting  interest  will  not 
furnish  ground  for  removal  except  in  a 
clear  and  extreme  case.  Randle  v. 
Carter,  62  Ala.  95.  For  failing  to 
sell  his  testator's  land,  where  the  time 
of  sale  was  left  to  his  discretion,  and 
where  he  has  tried  in  good  faith  to  sell, 
an  executor  should  not  be  removed. 
Haight  V.  Brisbin,  96  N.  Y.  132.  Nor 
for  apprehended  insolvency  where  the 
estate  is  well  protected.  14  Phila.  317. 
Nor  upon  a  mere  citation  to  appear  and 
settle  his  accounts.  108  111.  403.  On 
order  requiring  another  bond  does  not 
ousta  court  of  its  jurisdiction  to  remove. 
38  N.  J.  Eq.  490. 

1  Drake  v.  Green,  10  Allen,  124. 
Cf.  Lehr  v.  Turball,  3  Miss.  905. 

2  Mass.  Gen.  Stats,  c.  loi,  §  2; 
Harris  v.  Dillard,  31  Ala.  191 ;  local 
codes.  One  temporarily  absent  may 
often  delegate  his  trust  by  power  of 
attorney;  yet  temporary  absence  to  the 
detriment  of  the  estate  might  furnish 
cause  for  removal.  Mere  non-residence 
or  absence  is  not  necessarily  a  discjual- 
ification  per  se,  or  cause  for  removal, 
unless  the  statute  so  provides.  Walker 
7'.  Torrance,  12  Ga.  604;  McDonogh, 
Succession  of,  7  La.  Ann.  472;  4  Dem. 
492;  Wiley  V.  Brainerd,  11  Vt.  107; 
Cutler  V.   Howard,  9   Wis.  309.     And 

15 


§155  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

tratrix,  her  authority  as  such  ceases  ;  and  our  statutes  provide 
for  the  frrant  of  administration  de  bonis  non  in  such  a  case.^ 


^  155.  Procedure  in  Case  of  Revocation  of  Appointment  or 
Removal  from  Office.  —  Where  one  has  been  regularly  ap- 
pointed, he  is  not  bound  to  propound  his  interest  in  such 
proceedings  until  the  party  calling  it  in  question  has  estab- 
lished his  own  position.2  And  the  first  duty  of  the  appellant 
from  a  decree  in  probate  is  to  show  affirmatively  his  right 
to  appeal ;  for,  until  this  is  done,  or  the  right  admitted  by 
the  opposite  side,  the  merits  of  the  appeal  will  not  be  enter- 
tained.^ An  executor  or  administrator  is  entitled  to  notice 
and  a  reasonable  opportunity  to  appear  and  defend  himself 
in  all  cases  of  complaint  before  he  can  be  properly  removed 
or  his  letters  revoked ;  ^  and  if  his  failure  to  file  a  bond  or 
increase  his  security  be  the  cause  of  removal,  it  should 
appear  that  he  was  allowed  fair  time  to  comply  with  the 
order  of  the  court  and  failed  to  do  so.^  At  the  hearing  for 
his  removal,  as  well  as  for  the  revocation  of  a  probate  decree, 
both  petitioner  and  respondent  may  offer  evidence  pertinent 
to  the  issue ;  and  either  party  may  appeal  from  the  decree 
of  the  court  making  or  refusing  to  make  the  removal.^ 


though  absence  from  the  State  may  or  Kimball,  16  Mo.  9;  Yates  v.  Clark,  56 
may  not  be  cause  for  removal,  the  ad-  Miss.  212;  70  Cal.  343. 
ministration  is  not  meantime  vacant,  ^  Phillim.  155,  166. 
and  a  new  appointment  cannot  be  made  *  Pettingill  v.  Pettingill,  60  Me.  419. 
until  the  vacancy  is  made.  Hooper  v.  Statutes  concerning  removal  sometimes 
Scarborough,  57  Ala.  510;  McCreary  v.  require  the  petitioner  to  show  an  inter- 
Taylor,  38  Ark.  393.  See  Berry  v.  Bel-  est  in  like  manner.  Vail  v.  Givan,  55 
lows,  30  Ark.  198.  Ind.  59. 

1  Mass.   Gen.  Stats,  c.   loi,  §§   i,  4;  *  Murray  v.  Oliver,  3  B.  Mon.  i.  But 

Whitaker    v.    Wright,    35    Ark.    511;  the  executor  or  administrator  may  waive 

Duhme  w.  Young,  3  Bush,  343;   Kava-  notice    by    his    voluntary   appearance, 

naughz/.  Thompson,  16  Ala.  817;  Tesche-  Ferris  v.  Ferris,  89  111.  452. 

macher  v.  Thompson,  18  Cal.  1 1 1.    But  ^  Wingate  v.  Wooten,  5  Sm.  &  M.  245. 

as  to  the  effect  at  common  law  of  joining  "^  .See  Smith  (Mass.)  Prob.  Pract.  99; 

her   husband  in  the  trust,  see  Schoul.  Bailey  v.  Scott,  13  Wis.  618.     Concern- 

Hus.  &  Wife,  §  163.     A  formal  revoca-  ing   the    method    of    applying    for    the 

tion  of  authority  or  removal  from  office  revocation  of  letters  or  probate,  or  for 

is  in   some   States  required  before   the  the  removal  of  an  executor,  administra- 

wife  ceases  to  be  the  de  facto  and   de  tor,  or  other  probate  functionary,  numer- 

jure  incumbent  of  the  office.     Frye  v.  ous  late  decisions  are  found.    The  local 

216 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  1 56 

An  executor  or  administrator  removed  from  office  should 
settle  his  accounts  in  court  and  turn  over  the  estate  to  his 
successor  without  delay ;  otherwise,  he  and  his  sureties  may 
be  pursued.^  Discharge  from  office  relieves  from  further 
responsibility,  but  not  from  the  consequences  of  malfeasance 
and  neglect  while  in  office.  One  discharged  for  pressing 
cause,  such  as  the  insolvency  of  himself  and  his  sureties 
(which,  properly  speaking,  constitutes  ground  for  removal), 
is  not  relieved  from  the  obligation  to  account  ;  while  the 
interests  of  an  estate  may,  of  course,  require  one  to  be  thus 
discharged,  or,  in  general,  removed,  before  any  accounting 
at  all.2 

§  156.  Resignation  of  Executor  or  Administrator.  —  Removal 

without  cause  shown,  or  by  way  of  favor  to  the  incumbent, 
would  be  improper.  For  such  cases,  and  as  a  gentler  means 
of  vacating  an  office  unsuitably  filled,  our  statutes  further 
provide  the  opportunity  for  a  fiduciary  officer  to  resign. 
Thus,  in  Massachusetts,  it  is  enacted  that,  upon  the  request 
of  an  executor  or  administrator,  the  probate  court  may,  in 
its  discretion,  allow  him  to  resign  his  trust  ;  but  the  party 
applying  for  leave  to  resign  should  present  his  administra- 
tion account  to  the  court  with  his  petition  ;  nor  will  his 
request  be  allowed  until  his  accounts  are  settled,  after  such 
notice    to    the    parties    interested    as    circumstances    may 

statute  usually  enters  fully  into  the  de-  §    152.     As   to   superseriing   a  general 

tails    of    such    proceedings.       Removal  administrator  by  the  simple  probate  of 

cannot  be  demanded  by  way  of  opposi-  a  will,  and  the  appointment  of  executor 

tion,  but  if  at  all  it  must   be  by  direct  or  administrator  with  the  will  annexed 

proceedings  with  petition  and  citation,  without  a  removal,  etc.,  see  McC'auley 

Boyd,  Succession   of,  12   La.  Ann.  611.  v.  Harvey,  49  Cal.  497.     An  incumbent 

But  as  to  allegations  in  the  petition,  see  administrator's  acceptance  of  a  grant  of 

Neighbors  v.  Hamlin,  78  N.  C.  42.  administration  de  bonis  non  jointly  with 

Implied  revocaticm  of  one's  authority  another,    held    equivalent    to   resigning 

by  such  judicial  acts  as  a  new  appoint-  the   former   trust.     Turner   v.    Wilkins, 

ment  is  in  some   States  permitted,  even  56  Ala.  173. 

though  the  reason  for  revocation  or  re-         '  See    Aldridge    v.    McClelland,    34 

moval   arose    subsequently    to    the   ap-  N.  J.   Eq.   237;    West    v.   Waddill,    t^t, 

pointment.     Berry  v.  Bellows,  30  Ark.  Ark.  575;    Schlecht's  Estate,  2  Brews. 

198;    Bailey  v.  Scott,  13  Wis.  618.     But  (Pa.)  397;    Hood  Re,  104  N.  Y.  103. 
the    more    correct   practice    discounte-         ^  Union  Bank  v.   Poulson,   31    N.  J 

nances  implied  revocations.    See  supra,  Eq.  239.     See  64  Ala.  545. 

217 


§    157  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

require.^  An  executor  or  administrator  who  has  aheady 
qualified  has,  however,  been  permitted  to  terminate  his  trust 
before  he  has  taken  actual  possession  of  the  assets  or 
attempted  to  exercise  any  control  whatever  over  the  estate ; 
in  which  case,  the  acceptance  of  his  resignation  may  be 
followed,  as  usual,  by  the  appointment  of  a  successor.^ 

The  correct  settlement  of  one's  accounts,  and  transfer  ot 
the  balance  as  the  court  may  direct,  is  the  usual  condition 
upon  which  resignation  is  permitted.  And  where  there  is 
a  personal  trust  reposed  in  an  executor  under  the  will,  he 
should  not  be  discharged  until  he  has  performed  that  duty  ;^ 
nor,  in  general,  ought  one's  resignation  to  be  accepted 
regardless  of  the  detriment  which  the  estate  may  suffer  in 
consequence.* 

§  157.  Jurisdiction,  in  general,  as  to  Revocation,  Removal,  and 
Accepting  a  Resignation.  —  Revocation  of  letters  or  a  probate 
appears  to  be  a  different  thing  from  the  creation  of  a  vacancy 
in  the  office  by  death,  removal,  or  resignation,  though  the 
books  do  not  keep  this  distinction  clear.  As  a  general  rule, 
where  the  probate  court  has  once  regularly  conferred  the 
appointment,  it  cannot  remove  the  incumbent  afterwards 
except  for  causes  defined  by  statute.^  Nor,  if  precedents 
may  be  trusted,  can  an  executor  or  administrator,  who  has 
once  fully  accepted  and  entered  upon  his  trust,  resign  it 
unless   the    statute   permits   him    to ;   for  the   English   rule 

1  Mass.  Gen.  Stats,  c.  loi,  §  5;  Thayer         *  4  Dem.  162.     See  14  Atl.  808. 
V.    Homer,    11    Met.    144.      See    also         ^  Muiihead  j'.  Muirhead,  6  Sm.  &  M. 

local  codes;    Haynes  v.  Meek,  10  Cal.  451.     Citation  or  notice  of  proceedings 

110;  Carter  v.  Anderson,  4  Ga.  516;  to  interested  parties  ought  to  be  a  pre- 

Coleman  v.   Raynor,   3  Cold.   (Tenn.)  liminary  to  discharging  one  who  wishes 

25;    Morgan  v.  Dodge,  44  N.  H.  258.  to  resign.     50  Mich.  22;    67  Ga.  227; 

^Comstock  7>.  Crawford,  3  Wall.  396.  37  N.  J.  Eq.  521.  And  only  for  cause 
In  English  practice  an  executor  is  per-  and  after  notice  and  opportunity  to  lie 
mitted  to  renounce  probate  even  after  heard  should  one  be  removed.  Lever- 
he  has  taken  the  oath  of  office,  if  he  has  ing  v.  Levering,  64  Md.  399.  But  a 
not  already  taken  possession  or  control,  decree  of  discharge  regular  and  legal 
3  Hagg.  216;  Wms.  Exrs.  276,  281.  on  its  face  and  never  challenged  is  not 
And  see  Mitchell  v.  Adams,  i  Ired.  to  be  set  aside  after  twenty  years  merely 
298.  because    some   interested  party    was   a 

3  Lott  V.  Meacham,  4  Fla.   144;   Van  minor  when   the  decree  was  rendered. 

Wyck,  Matter  of,  i  Barb.  Ch.  565.  102  Penn.  St.  258.    And  see  63  Cal.  473. 

218 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  I  58 

always  discountenanced  such  a  practice,  as  to  tiicse  and 
similar  fiduciaries.^  Other  courts,  therefore,  having  equity 
powers,  must  incline  to  exercise  them  in  restraint  of  the 
probate  appointment,  where  the  probate  courts  have  no 
plenary  jurisdiction  to  remove  or  accept  the  resignation  of 
an  executor  or  administrator ;  appointing,  it  may  be,  a 
receiver  of  their  own,  and  temporarily  restraining  the  author- 
ity of  an  executor,  in  an  emergency.^  So,  too,  English  prac- 
tice appears  to  enlarge  the  right  of  revocation,  in  default  of 
the  power  to  remove  ;  for,  as  the  books  say,  administration 
may  be  revoked  if  a  next  of  kin  to  whom  it  has  been  com- 
mitted becomes  non  compos  or  otherwise  incapable,  and  per- 
haps, too,  if  he  goes  beyond  sea.^  But  in  our  later  Ameri- 
can practice  the  court  of  original  probate  jurisdiction  is  the 
most  suitable  tribunal  in  the  first  instance  for  revoking  such 
appointments,  for  removing  or  accepting  resignations,  and, 
in  general,  for  regulating  the  succession  in  the  office  of 
.  executor  or  administrator ;  and  to  such  courts  the  statute 
authority  chiefly  relates.* 

§  158.  Natural  Termination  of  an  Executor's  or  Administrator's 
Authority.  —  The  death  of  an  executor  or  administrator,  leav- 

^i    Ventr.    335;     Wms.    Exrs.    281;  larly  made,  while  one  is  sane  and  com- 

Haigood  v.  Wells,    l    Hill    (S.   C.)   Ch.  petent,    his    subsequent    incompetency 

59;    Sears  v.  Dillingham,  12  Mass.  358;  does  not  invalidate  the  original  decree 

Sitzmant/.  Pacquette,  13  Wis.  291  ;  Wash-  more  than  his  subsequent  misconduct; 

ington  V.  Blunt,  8  Ired.  Eq.  253.    As  to  the  decree  was  good,  but  the  case  calls 

guardians,  see  Schoul.  Dom.  Rel.  §  315.  later  for  removal  from  office.     See  post, 

2  Long   V.    Wortham,    4    Tex.    381 ;  effect  of  revocation. 

Leddell  v.  Starr,  4  C.  E.  Green,   159.  *  See  Waters  v.  Stickney,  12  Allen, 

See  Cooper  z/.  Cooper,    5  N.  J.   Eq.  9;  15;     Ledbetter   v,    Lofton,    i    Murph. 

Wilkins  v.  Harris,  i  Wms.  (N.  C.)  Eq.  (N.    C.)  224;    Hosack   v.    Rogers,    11 

41.  Paige,  603  ;    Chew  v.  Chew,   3   Grant 

3  Bac.  Abr.  Exrs.  etc.  E;  Wms.  Exrs.  (Pa.)  289  ;  Wilson  v.  Frazier,  2  Humph. 
579.  And  yet  revocation,  so  called,  30.  In  New  Jersey,  where  chancery 
appears  to  involve  in  probate  the  idea  courts  exercise  similar  powers  with  those 
of  vacating  that  which  was  originally  of  England,  it  is  held  that  the  court  of 
void  or  voidable  and  clogged  at  the  probate  alone  can  remove  an  executor; 
outset.  Thus,  the  appointment  of  one  but  that  chancery  may  intervene,  as  to 
already  non  compos,  like  the  probate  of  the  functions  of  trustee,  where  these  are 
a  will  which  was  not  really  the  last  one,  exercised  also  by  the  executor,  and  also 
is  based  upon  some  fundamental  error;  enjoin  the  executor  from  acting  where 
the  decree  never  should  have  been  en-  he  is  likely  to  abuse  his  authority, 
tered.     But  if  an  appointment  be  regu-  Leddell  v.  Staurr,  4  C.  E.  Green,  159. 

219 


§    l60  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ing  his  trust  unperformed,  gives  occasion,  of  course,  to  the  ap- 
pointment of  a  successor ;  and  death  in  any  event  terminates 
his  own  functions  ;  his  estate  continuing  liable  for  any  mal- 
administration on  his  part  while  in  office.  It  is  not  usual  to 
discharge  such  an  officer  formally,  even  though  his  trust  be 
fully  performed  ;  but  on  the  approval  of  his  final  account,  no 
appeal  being  taken,  and  the  final  distribution  of  the  estate, 
it  may  at  all  events  be  presumed  that  his  functions  have 
reached  their  natural  end.^ 

§  159.  Delegation  of  Authority  does  not  relieve;  but  Super- 
sedure  does.  —  An  executor  or  administrator  cannot,  by 
delegation  of  his  own  authority,  avoid  any  of  the  liabilities 
imposed  on  him  by  law.^  But  it  is  otherwise,  where  a  court 
having  jurisdiction  supersedes  his  authority,  and  vests  the 
new  appointee  with  his  functions. 

§  160.  The  Effect  of  Probate  Decrees.  —  Concerning  the  legal 
effect  of  the  revocation  of  probate  or  letters  on  the  inter- 
mediate acts  of  the  former  executor  or  administrator,  a  dis- 
tinction is  made  in  the  books  between  grants  void  and  void- 
able. A  grant  utterly  void  and  without  jurisdiction,  as  in 
the  case  of  administration  upon  the  estate  of  a  living  per 
son,  gives  no  shelter  to  the  acts  of  the  appointee  ;  and  revo- 
cation in  such  case  appears  to  be  only  for  the  sake  of  correct- 
ing the  records  and  preventing  further  mischief.^  The  grant 
of  administration  on  the  estate  of  a  decedent,  while  a  will 
was  in  existence,  being  for  a  time  concealed,  is  treated  as 
void  with  similar  consequences  ;  *  and  so,  too,  is  it,  we  may 

1  See  post  as  to  distribution  and  ac-  withstanding  an  administration  had  been 
counts.  Under  the  Louisiana  code  of  granted  on  due  presumption  of  his  death, 
1808,  the  office  of  testamentary  executor  and  payment  was  made  to  such  admin- 
expired  at  the  end  of  the  year,  unless  istrator.  And  see  Burns  v.  Van  Loan, 
the  will  expressed  otherwise  or  the  term  29  La.  Ann.  560  ;  Moore  v.  Smith,  1 1 
of  office  was  prolonged  by  the  judge.  Rich.  569  ;  Devlin  v.  Commonwealth, 
D^ranco  v.  Montgomery,  13  La.  Ann.  lOl  Penn  St.  273. 

513.  *  See  English  case  of  Graysbrook  v. 

2  Driver  v.  Riddle,  8  Port.  (Ala.)  Fox,  Plowd.  276  ;  Wms.  Exis.  586,  587. 
343  ;  Bird  v.  Jones,  5  La.  Ann.  645.  Not  necessarily,  however,  where  the  will 

^  In  Jochumsen  v.  Suffolk  Savings  was  foreign,  and  local  jurisdiction  arose 
Bank,  3  Allen,  87,  the  living  depositor  because  of  local  assets.  Shephard  v. 
was  allowed  to  sue  for  his  deposit,  not-     Rhodes,  60  111.  301.     See  next  page. 

220 


CHAP.    VI.]  REVOCATION    OF    LETTERS,    ETC.  §    l60 

presume,  where  the  grant  was  under  a  certain  will,  and  a  later 
will  came  to  light  afterwards,  conferring  the  executorship 
elsewhere,  and  making  a  different  disposition  of  the  estate.^ 
The  sale  or  collection  of  one's  property  under  such  circum- 
stances, by  the  wrongful  representative,  may  (subject  to  the 
usual  exceptions  in  favor  of  bo7id  fide  third  parties,  and  ne- 
gotiable instruments)  be  avoided  by  the  living  person  who 
was  supposed  dead,  or,  as  the  case  may  be,  by  the  rightful 
representative  of  his  estate  duly  appointed  ;  trover  or  deti- 
nue for  the  property  may  be  maintained,  or  assumpsit  for 
the  money  produced  (the  tort  being  waived),  as  so  much 
money  received  to  the  use  of  the  rightful  party.^  Nor  is  it 
certain  how  far  the  defendant  thus  sued  shall  be  permitted 
to  recoup,  by  way  of  offset,  payments  made  in  due  course  of 
administration,  or  for  debts  which  were  lawfully  due  from  the 
supposed  decedent  or  his  estate  ;  though,  doubtless,  such  re- 
coupment is  to  some  extent  proper.^ 

Where,  however,  the  grant  was  voidable  only,  as  in  case 
letters  of  administration  are  issued  by  a  competent  court 
to  a  party  not  entitled  to  priority,  and  without  citation  of 
those  so  entitled  or  their  renunciation,  all  the  lawful  and 
usual  acts  of  the  appointee  performed  meanwhile,  and  not 
inconsistent  with  his  grant,  shall  stand  good  until  the  au- 
thority is  revoked.*     If,  after  administration  has  been  granted, 

1  Woolley  V.  Clark,  5  B.  &  Aid.  744.  it  was  ruled  that  if  the  sale  had  been 
A  similar  fatal  consequence  has  been  made  to  discharge  funeral  expenses  or 
held  to  attend  the  grant  of  letters  by  an  debts  which  the  executor  or  adminis- 
interested  judge.  Gay  f .  Minot,  3  Cush.  trator  was  compelled  to  pay,  the  sale 
352.  Sed  qti.,  unless  a  statute  is  explicit  would  have  been  indefeasible  forever, 
on  this  point.  See  Aldrich,  Appellant,  But  cf.  Woolley  v.  Clark,  5  B.  &  Aid. 
no  Mass.  193;  Moses  zi.  Julian,  45  744;  Wms.  Exrs.  271,  588.  And  see 
N.  H.  52.  Where  a  will  admitted  to  post  as  to  executors  de  son  tort,  c.  8. 
probate  is  declared  void  on  appeal,  let-  A  grant  of  letters  to  one  who  has  not 
ters  under  the  will  cannot  issue  prop-  qualified  by  giving  the  statute  bond  is 
erly.  Smith  v.  Stockbridge,  39  Md.  void.  Bradley  v.  Commonweallh,  31 
640  ;  3  Ired.  557.  Penn.  St.  522.     In   such    case   the  ap- 

2  Lamine  v.  Dorrell,  2  Ld.  Raym.  pointment  perhaps  was  never  completed, 
1216;    Woolley  V.  Clark,  5  B.  &  Aid.     properly  speaking.     Supra,  %  153. 

744  ;    Dickinson  v.  Naul,  4  B.   &  Ad.  ^  Wms.  Exrs.  588,  and  cases  cited  ; 

638  ;  Wms.  Exrs.  587.  Kelly  v.  West,  80  N.  V.  139  ;   Pick  v. 

*  In  Graysbrook  v.  Fox,  Plowd.  276,     Strong,  26  Minn.  303. 

221 


§    l6o  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

a  will  is  produced  for  probate,  acts  performed  under  the  grant 
in  good  faith  and  beneficially  are  sometimes  held  valid. ^ 

It  has  been  laid  down,  and  quite  broadly,  that  a  payment 
bona  fide  made  to  any  de  facto  executor  or  administrator, 
appointed  by  a  court  of  competent  jurisdiction,  will  discharge 
the  debtor.^  This  rule  has  been  applied  to  the  case  of  a  pro- 
bate which  was  afterwards  declared  null,  because  of  a  forged 
will ;  and  upon  the  sensible  reasoning  that  the  debtor  cannot 
controvert  the  title  of  the  executor,  who  presses  him,  so  long 
as  the  probate  remains  unrepealed,  nor  possess  himself  of  the 
means  of  procuring  such  repeal.^  Statutes  now  in  force  con- 
firm and  enlarge  the  validity  of  payments  made  bond  fide  to 
any  executor  or  administrator,  under  a  probate  or  administra- 
tion afterwards  revoked,  if  made  before  revocation  ;  declar- 
ing such  payment  to  be  a  legal  discharge  to  the  person 
making  it.'* 

After  revocation  or  the  removal  of  an  executor  or  admin- 
istrator from  ofBce,  or  the  acceptance  of  his  resignation,  he 
cannot  complete  a  sale  which  he  had  been  negotiating  on 
behalf  of  the  estate ;  °  nor  collect  assets ;  ^  nor  carry  on  or 
defend  a  suit  in  his  official  capacity  ; "  nor  in  general  exercise 
the  functions  of  his  late  ofBce. 

English  and  American  statutes  in  modern  times  aim  to 
correct  the  legal  mischief  of  overturning  acts  performed  in 
good  faith  and  pursuant  to  a  probate  or  letters  of  appoint- 
ment afterwards  set  aside  for  cause.  Apart  from  any  right 
to  recoup  for  funeral  and  other  lawful  debts  of  the  deceased, 

1  Kittredge  v.  Folsom,  8  N.  H.  98  ;  abated,  unless  judgment  had  been  ob- 

Kane  v.  Paul,  14  Pet.   t,T)  ;    Bigelow  v.  tained  by  such  executor  or  administra- 

Bigelow,  4  Ohio,  138.  tor,  but  modern  practice  acts  avoid  such 

^  Wins.  Exrs.  590,  and  cases  cited.  inconvenience    to    the    estate.      Wms. 

3  Allen  z'.  Dundas,  3T.  R.  125  ;  Best,  Exrs.    592.     Judgment   cannot  be   ren- 

J.  in  Woolley  v.  Clark,  5  B.  &  Aid.  746.  dered  against  a  displaced   executor  or 

*  Stat.  20  &  21  Vict.  c.  77  ;   Wms.  administrator.     Wms.  Exrs.  594  ;  Wig- 

Exrs.  591,  592  ;  Hood  v.  Barrington,  L.  gin  v.  Plumer,  31  N.  H.  251  ;   National 

R.  6  Eq.  222.  Bank  v.  Stanton,  116  Mass.  435  ;    26 

^  Owens  V.  Cowan,  7  B.  Mon.  152.  Tex.  530.     But  removal  from  a  trustee- 

^  Stubblefield  v.  Mc Raven,  5  Sm.  &  ship  is  not  necessarily  a  removal  from 

M.    130.     He    may   be   enjoined   from  the  executorship.     22  Hun,  86.     Stat- 

doing  so  by  a  court  of  chancery.     Stub-  utes  control  this  subject  which  regard 

blefield  v.  McRaven,  ib.  the  interests  of  the  estate.     lb. 

^  Formerly  such  a  suit  would  have 

222 


CHAP.  VI.]      REVOCATION  OF  LETTERS,  ETC.  §  l6o 

it  is  expressly  provided  by  the  Knglish  Act  20  &  21  Vict, 
c.  TJ,  that  the  executor  or  administrator  who  shall  have  acted 
under  a  revoked  probate  or  administration  may  retain  and 
reimburse  himself  in  respect  of  any  payments  made  by  him 
which  the  person  to  whom  probate  or  letters  of  administration 
are  afterwards  granted  might  have  lawfully  made.  American 
legislation  is  also  found  providing  for  the  relief  of  the  parties 
affected,  in  cases  where  the  appointment  of  an  executor  or 
administrator  shall  be  vacated  or  declared  void  afterwards.^ 
And  the  rule  to  be  favored  at  the  present  day  is,  that  all  acts 
done  in  the  due  and  legal  course  of  administration  are  valid 
and  binding  on  all  interested,  even  though  the  letters  issued 
by  the  court  be  afterwards  revoked  or  the  incumbent  dis- 
charged from  his  trust.^  And  although  one's  appointment  as 
executor  or  administrator  may  have  been  erroneous,  the  safer 
doctrine  is,  that  the  letters  and  grant  issued  from  the  probate 
court  shall  not  be  attacked  collaterally  where  the  court  had 
jurisdiction  at  all,  and  least  of  all  by  common-law  courts  ;  ^ 
and  statutes  extend  this  principle  to  cases  where  there  was 
no  jurisdiction,  provided  no  want  of  jurisdiction  appear  of 
record;^  thus,  in  fine,  discouraging  collateral  issues  of  fact 
upon  a  grant  of  authority  which  appears  regular  on  its  face, 
and  making  such  decrees  voidable,  in  effect,  until  vacated, 
and  not  utterly  void,  if  at  all  events  there  was  a  dead  person's 

^  Wms.    Exrs.    592  ;     McFeely    v.  by  letters  de  bonis  non.     See  Callahan 

Scott,  128  Mass.  16.     And  see  3  Wash.  v.    Smith,    T.    U.    P.     Charlt.     (Ga.) 

C.  C.  122.  149. 

■■2  Foster  v.  Brown,  1  Bailey  (S.  C.)  *  Peters  v.  Peters,  8  Cush.  542;  Wms. 

221  ;    Brown  v.  Brown,  7  Oreg.  285  ;  Exrs.  549;    2  Vern.  76;   3  T.  R.  125; 

Shephard  z/.  Rhodes,  60  111.  301.     As  to  Boody   v.    Emerson,    17    N.    H.    577; 

a  public  administrator  whose  office  has  Clark  v.  Pishon,  31  Me.  503;   Xaylor  v. 

expired,  see   Rogers   v.    lioberlein,  11  Moffatt,  29  Mo.  126;   P'isher  z'.  Bassett, 

Cal.     120  ;     Beale     v.    Hall,     22    Ga.  9  Leigh,  119;  Morgan  v.  Locke,  28  La. 

431.  Ann.  806;  Taylor  v.  Hosick,  13  Kan. 

As  between  revocation  of  an  appoint-  518;    Hart  v.  Bostwick,   14  Fla.    162; 

ment  and  the  creation  of  a  vacancy  by  Burnett  v.  Nesmith,  62  Ala.  261 ;    Pick 

death,  removal,  or  resignation,  it  would  v.    .Strong,   26    Minn.    303;    Wright  v. 

appear  on  principle  that,  in  the  former  Wallbaum,  39  111.  554.     And  especially 

instance,    further    proceedings    are    de  not  by  a  person    not   "  interested "   in 

novo,  giving  rise  to  an  original  appoint-  legal  contemplation.     Taylor  v.  Hosick, 

ment  by  new  letters  ;  while,  in  the  latter,  13  Kan.  518. 

there  arises  successorship,  and  the  proper  *  McFeely   v.   Scott,   128    Mass.    16; 

appointment  for  the  vacancy  should  be  Record  v.  Howard,  58  Me.  225. 

223 


§    l60  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

estate.  And  a  similar  rule  applies  to  the  probate  decree  which 
discharges  an  appointee  or  revokes  his  appointment. ^  But 
the  grant  of  letters  by  a  local  probate  court,  having  no  juris- 
diction of  the  person  or  subject-matter,  will  not  bind  the  com- 
petent probate  tribunal  ;  which  latter  tribunal  may  proceed 
to  grant  letters,  though  the  void  grant  by  the  former  tribunal 
be  not  revoked.^ 

The  conclusiveness  of  probate  decrees  is  deducible  from 
such  exclusive  jurisdiction  as  may  be  conferred  upon  probate 
courts  to  decide  on  the  validity  of  wills,  to  grant  adminis- 
tration, and  to  supervise  the  settlement  of  the  estates  of 
deceased  persons.  And  according  as  the  local  statute  may 
extend  or  limit  this  special  jurisdiction,  so  must  the  effect  of 
such  decrees  be  determined.  Probate  courts  are  usually 
made  courts  of  record,  and  treated  as  courts  of  general  juris- 
diction on  all  subjects  pertaining  to  their  peculiar  functions.^ 

Formerly,  in  the  English  ecclesiastical  practice,  probate 
did  not  authenticate  a  will  of  real  estate  ;  *  but  in  England 
and  most  American  States,  at  the  present  day,*  the  statute 
jurisdiction  of  courts  of  probate  extends  to  wills  of  both  real 
and  personal  property  without  distinction.^  The  probate  or 
grant  is  conclusive  upon  all  persons  interested,  whether 
infants,  persons  non  compos,  or  absentees  ;  provided  citation 
was  duly  granted  in  the  premises.^  But  the  probate  of  a 
will,  while  stamping  it  as  authentic  and  originally  valid,  does 
not  interpret  the  document.'      Probate  and  letters  furnish  no 

1  Simpson  v.  Cook,  24  Minn.  180;  object  to  the  want  of  jurisdiction  in  the 
Bean  v.  Chapman,  62  Ala.  58.  court  which  issued  them.       And  no  one 

2  Barker,  Ex  parte,  2  Leigh,  719.  can  intervene  in  the  affairs  of  an  estate 

3  Waters  v.   Stickney,    12   Allen,   3;  unless  he  is  either  personally  interested 
Stearns  v.  Wright,  51   N.  H.  609,  and  or    else   authorized    to    do    so    by    law. 
cases  cited.     That  the  administrator  ap-  Breen  v.  Pangborn,  51  Mich.  29. 
pointed  was  not  a  citizen  is  not  good         *  2  Campb.  389;  Carroll  z/.  Carroll,  60 
ground  of  collateral  attack,  67  Ga.  103;  N.  Y.  125. 

nor  generally,  if  the  judge  has  acted  °  See  English  Court  of  Probate  Act, 

within    his    jurisdiction   as    to    subject-  1857,  20  &  21  Vict.  c.  77;   supra,  §  8; 

matter,   can  the  validity  of  the  letters  Parker  w.  Parker,  11  Cush.  525. 

be  thus  impeached.       And  see   12  Or.  ^  Wms.  Exrs.  565. 

108.     The  Michigan  rule  is  that  what-  ^  Holman  v.  Perry,  4  Met.  492,  497; 

ever    may    be    the    immunity   of  letters  Fallon  v.  Chidester,  46  Iowa,  588.    The 

of  administration   against  attacks  from  probate  ascertains  nothing  but  the  orig- 

strangers,  parties  interested  may  always  inal  validity  of  the  will  as  such,  and  that 

224 


CHAP.    VI.]  REVOCATION    OF    LETTERS,    ETC.  §    l6l 

proof  of  death  for  the  suits  of  strangers  ;  ^  though  to  dispute 
thus  an  executor's  or  administrator's  authority,  in  his  own 
suit,  should  require  appropriate  pleading,  an  admission  of 
his  authority  being  admission  of  the  death  essential  to  such 
authority,  so  as  to  dispense  with  other  proof.^  Nor  does  the 
legal  conclusiveness  attaching  to  probate  decrees  prevent 
proof,  in  a  collateral  suit,  that  the  pretended  decree  in  ques- 
tion was  a  forgery,  or  that  the  alleged  appointment  has  been 
revoked ;  for  this  is  to  affirm  what  is  of  genuine  probate 
record. 3 

§  l6l.  Effect  of  an  Appeal  from  Decree.  —  The  usual  effect 
of  an  appeal  from  probate,  or  from  one's  appointment  as 
executor  or  administrator,  is  to  suspend  the  authority  con- 
ferred by  such  appointment  ;  and  pending  such  appeal,  and 
until  termination  of  the  controversy,  it  is  a  special  adminis- 
trator, if  any  appointee,  who  should  protect  the  estate*  An 
appeal  by  the  executor  or  administrator  from  a  decree  revok- 
ing his  authority,  leaves  him,  of  course,  without  authority.^ 

the  instrument,  in  fact,  is  what  it  pur-  fact  that  one  is  executor  or  administrator 

ports  on  its  face  to  be.    Fuller,  £x />ar/e,  may  be  traversed  in  pleading.     Wms. 

2  Story,  332.  Exrs.  560,  561 ;    Plowd.  282. 

1  The  death  of  the  deceased  is  a  fact  ^  i  Stra.  671 ;  Wms.  Exrs.  563. 

not    usually    passed   carefully    upon    in  There  must  be  an  order  for  letters  to 

granting  letters,  but  is  rather  assumed  issue,   signed    by   the  judge   or    clerk; 

by  the  probate  court  upon  very  slight  otherwise  the  letters  are  void      Wirt  v. 

/>r/wJ  ya^-zif  evidence  or  the  petitioner's  Pintard  (La.)    4  So.    14.     For    a  void 

allegation.     Hence,  it  is  held,  in  suits  decree  which  did  not  specify  the  estate, 

between  strangers,  as  where  the  widow  see  (Tex.)  7  S.  W.  789. 

sues  upon  an  insurance  policy  on  the  ■*  Wms.  Exrs,  588.      But  an  executor 

life  of  her  husband,  that  letters  of  ad-  duly  qualified  upon  probate  of  a  will  in 

ministration  issued  upon  his  estate  fur-  common  form  may  continue  to  act,  not- 

nish   no  proof   of  his    death.       Mutual  withstanding  an  issue  joined  afterwards 

Benefit  Life  Ins.  Co.  v.  Tisdale,  91  U.  S.  testing  the  validity  of  the  will  as  to  real 

Supr.  238;   Carroll  v.  Carroll,  60  N.  Y.  estate  only.      Byrn  v.  Fleming,  3  Head, 

121.  658. 

'^  Lloyd   V.    Finlayson,    2    Esp.    564;  ^I'jjompson  z/.  Knight,  23  Ga.  399. 
Newman  z/.  Jenkins,  10  Pick.  515.    The 

225 


§   163  EXECUTORS    AND   ADMINISTRATORS.  [PART    II. 


CHAPTER  VII. 

FOREIGN    AND    ANCILLARY    APPOINTMENTS. 

§  162.  The  Subject  of  Foreign  and  Ancillary  Appointments 
considered  frequently  in  the  United  States  but  not  in  England. 
—  The  subject  of  foreign  and  ancillary  appointments  is  con- 
sidered frequently,  in  connection  with  administration  of  the 
estates  of  deceased  persons,  in  the  United  States  ;  but  sel- 
dom, comparatively  speaking,  in  England.  There  probate 
jurisdiction  is  always  domestic,  save  as  to  colonies  and  foreign 
countries  ;  but  here  it  is  strictly  domestic  only  in  pertaining 
to  some  particular  State.  A  person  may  be  domiciled  in 
one  State  jurisdiction  at  the  time  of  his  death,  and  yet  leave 
property  which  another  State  can  reach  by  its  owil  indepen- 
dent process,  under  circumstances  justifying  its  own  territo- 
rial grant  of  administration ;  and  cases  may  arise,  though  in 
practice  more  rarely,  by  comparison,  where  there  are  found 
local  assets  of  some  foreigner  who  died  testate  or  intestate, 
leaving  an  estate  in  his  own  country  to  be  administered. 
Domestic  probate  jurisdiction  is  here  internal,  in  other  words, 
either  as  respects  other  States  in  the  same  federal  Union,  or 
other  countries.^ 

§  163.  "What  is  Ancillary  Administration. — We  have  seen 
that  original  letters  of  administration  may  be  taken  out  upon 
the  estate  of  a  foreigner,  on  the  ground  that  local  assets  are 
within  the  jurisdiction  and  there  is  occasion  for  such  appoint- 
ment ;  and  further,  that  the  non-existence  of  known  kindred 
will  not  debar  the  local  probate  court  from  granting  these 
letters.  Such  a  grant,  however,  is  founded  usually  upon 
ignorance  of  any  last  will  of  the  deceased,  or  of  any  probate 
or  principal  administration  duly  granted  in  the  courts  of  his 

^  Supra  §§  15-20,  on  the  subject  of  conflict  of  laws, 
226 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    164 

last  domicile;^  hence,  the  administration  is  looked  upon  as 
sufficiently  a  principal  one  for  the  convenience  of  the  court 
and  of  the  sovereign  authority  which  exercises  jurisdiction 
in  the  premises.  But  were  such  a  foreign  will  or  a  foreign 
appointment  of  executor  or  principal  administrator  known 
to  exist,  the  case  would  be  properly  treated,  in  I'^ngland  and 
the  United  States,  on  the  principles  of  comity  ;  international, 
or  inter-State  comity,  as  the  case  might  be.  And  regarding 
the  fundamental  rules  of  comity,  principal  administration 
is  properly  that  of  the  country  or  State  only  where  the 
deceased  person  had  his  last  domicile ;  administration  taken 
out  elsewhere,  in  the  country  or  State  where  assets  were 
locally  situate,  being  known  as  ancillary  (that  is  to  say,  aux- 
iliary or  subordinate)  administration.  In  the  course  of  this 
treatise  it  will  be  seen  that  one  who  actually  officiates  as 
ancillary  administrator  observes  somewhat  peculiar  rules  as 
to  managing  and  settling  the  estate.  And  in  the  present 
chapter  we  shall  first  observe  that  peculiar  rules  guide  the 
court  with  respect  to  the  character  and  method  of  making 
the  ancillary  appointment. ^ 

§  164.  Letters  Testamentary  or  of  Administration  have  no 
Extra-territorial  Force.  —  The  first  proposition  to  be  laid  down, 
with  reference  to  foreign  and  domestic,  principal  and  ancil- 
lary administration,  is  that,  according  to  the  recognized  law 
both  of  England  and  the  United  States,  letters  granted 
abroad  confer,  as  such,  no  authority  to  sue  or  be  sued,  or  to 
exercise  the  functions  of  the  office  in  another  jurisdiction  ; 
though  they  may  afford  ground  for  specially  conferring  a 
probate  authority  within  such  other  jurisdiction  ;  and  the 
same  person  sometimes  qualifies  as  principal  and  ancillary 
representative.  Hence,  letters  testamentary  granted  to  an 
executor  in  one  State  or  country  have  no  extra-territorial 
force.^     And  an  administrator  has  no  authority  beyond  the 

"^  Supra,  §§  15-20.  8  Enohin  v.  Wylie,  10  H.  L.  Cas.  19, 

2  Stevens  v.  Gaylord,  II    Mass.  256;     per  Lord  Cranworth;    2  CI.  &  Kin.  84; 

Merrill  v.  N.  E.  Mut.  Life  Ins.  Co.,  103     3  Q.  B.  507;   Wms.  Exrs.  7th  Kng.  ed. 

Mass.  245;    Clark  z'.  Clement,  33  N.  H.     362;     Kerr  'v.    Moon,    9    Wheat.    565; 

567;   Childress  z*.  Bennett,  10  Ala.  751.     Stearns  v.  Burnham,   5  Greenl.   (Me.) 

227 


§    1 66  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

limits  of  the  State  or  country  in  which  he  was  appointed.* 
In  either  case,  one  must  be  confirmed  in  his  authority  by  the 
courts  of  the  State  or  country  in  which  property  is  situated 
or  debts  are  owing  before  he  can  effectually  administer  the 
property  or  collect  the  debts  there.  For  the  rights  of  citizens 
in  the  local  jurisdiction  must  be  protected,  and  one  is  incapa- 
ble of  suing  outside  the  jurisdiction  which  appointed  him.^ 

§  165.  Each  Sovereignty  competent  to  confer  a  Probate  Au- 
thority within  its  own  Jurisdiction.  —  A  second  proposition 
(which  may  be  regarded  as  the  correlative  of  the  preceding, 
and  universally  recognized  both  in  England  and  the  United 
States)  is,  that  each  independent  sovereignty  considers  itself 
competent  to  confer,  whenever  there  is  occasion,  a  probate 
authority,  whether  by  letters  testamentary  or  of  administra 
tion,  which  shall  operate  exclusively  and  universally  within 
its  own  sovereign  jurisdiction,  there  being  property  of  the 
deceased  person,  or  lawful  debts  owing,  within  reach  of  its 
own  mandate  and  judicial  process.^  Such  sovereign  jurisdic- 
tion is  not  national,  of  necessity  ;  for  in  the  United  States, 
agreeably  to  the  limitations  of  our  federal  constitution,  it 
applies  as  between  the  several  States. 

§  166.    Local  Sovereignty  recognizes  Limitations  grounded  in 
Comity,   Good   Policy,  and  Natural   Justice.  —  But  we    may  re- 

261;  Harper  ?'.  Butler,  2  Pet.  239;  Tre-  13   Mo.  480;    Smith  v.  Guild,  34  Me. 

cothick  V.  Austin,  4  Mas.  16;  Patterson  443;     Nowler    v.    Coit,    i    Ohio,    519; 

V.  Pajan,  18  S.  C.  584;    Reynold  z^. Tor-  Carmicliael  v.  Ray,  i  Rich.   1 16;   Shel- 

rance,  2  Brev.  59;    Naylor  v.   Moffatt,  don  v.  Rice,  30  Mich.  296. 

29  Mo.  126;   Oilman  v.  Oilman,  54  Me.  ^  gee  Wilkins  v.  Ellett,  108  U.  S.  256, 

453;   supra  §   15.      A  dictum  of  Lord  258. 

Westbury,  in  Enohin  v.  Wylie,  supra,  *  Banta  v.  Moore,  15  N.  J.  Eq.  97; 
to  the  effect  that  only  the  courts  of  that  Naylor  z'.  Moffatt,  29  Mo.  126.  Thus, 
country  in  which  a  testator  dies  domi-  in  England,  one  having  an  English  ap- 
ciled  can  administer  his  personal  prop-  pointment  as  executor  is  permitted  to" 
erty  is  erroneous.  6  App.  Gas.  34,  39.  sue  there  in  respect  of  foreign  assets,  so 
^  Picquet  V.  Swan,  3  Mas.  469;  Ma-  far  as  local  courts  can  be  of  service  to 
son  V.  Nutt,  19  La.  Ann.  41 ;  Cutter  v.  him.  Whyte  v.  Rose,  3  Q.  B.  493. 
Davenport,  I  Pick.  81;  Dorsey  z/.  Dor-  And  see  Reynolds  v.  Kortwright,  18 
sey,  5  J.  J.  Marsh.  280;  Williams  v.  Beav.  417;  Price  w.  Dewhurst,  4  M.  & 
Storrs,  6  Johns.  Gh.  353;  Vaughn  v.  Gr.  76.  And  whether  the  local  prop- 
Barret,  5  Vt.  T,Tyy,  Willard  v.  Ham-  erty  shall  he  remitted  al)road  is  matter 
mond,  21  N.  H.  382;   McCarty  z/.  Hall,  of  local  discretion.    Fretwell  z/.  Lemore, 

228 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    167 

mark,  again,  that,  competent  as  each  sovereign  jurisdiction 
regards  itself,  in  this  matter,  limitations  are  nevertheless 
placed  to  the  exercise  of  such  authority,  out  of  respect  to 
comity,  good  policy,  and  natural  justice  ;  which  limitations  we 
shall  find  respected  by  local  legislatures  and  the  local  courts 
of  England  and  the  United  States.  And  hence  our  third 
proposition  :  that  in  practice,  the  local  sovereignty.  State  or 
national,  permits  letters  to  issue  upon  the  estates  of  deceased 
non-residents,  mainly  for  the  purpose  of  conveniently  subject- 
ing such  assets  to  the  claims  of  creditors  entitled  to  sue  in 
the  local  courts,  and  for  appropriating  whatever  balance  may 
remain  to  the  State  or  sovereign,  by  way  of  distribution,  in 
default  of  known  legatees  or  kindred.  If,  therefore,  the  non- 
resident proves  to  have  left  legatees  and  a  will  whose  probate 
may  be  established,  or  kindred  lawfully  entitled  to  distribu- 
tion, or  foreign  creditors,  the  rights  of  all  parties  thus  inter- 
ested should  be  respected;  and,  subject  to  local  demands 
upon  the  estate,  the  local  administration  and  settlement  of 
the  estate  will  be  regulated  accordingly.^ 

§  167.  Administration  in  the  last  Domicile  is  the  Principal  , 
other  Administrations  are  Ancillary. — Our  fourth  proposition 
is,  that  regarding  this  subject  from  an  international  stand- 
point, wherever  authority  to  administer  the  estate  of  one 
deceased,  testate  or  intestate,  is  granted  in  two  or  more  com- 
petent jurisdictions,  the  principal  administration  or  appoint- 
ment must  be  that  where  the  deceased  had  his  last  domicile ; 
and  that  administration,  or  an  appointment  granted  elsewhere, 
or  because  of  local  property  or  assets,  is  ancillary  merely.^ 
And  this  chiefly  because,  as  an  international  doctrine,  it  is 
usually  conceded  that  the  law  of  the  domicile  of  the  owner 

52  Ala.  124;   Mackey  v.  Coxe,  18  How.  2  jr^y  v.  Haven,  3  Met.  (Mass.)  109; 

(U.    S.)    IOC;     Carmichael   v.    Ray,    5  Merrill  v.  N.  E.  Life  Ins.  Co.,  103  Mass. 

Ired.  Eq.  365;    Hughes,  Re,  95  N.   Y.  245;    Childress  7'.  Bennett,  10  Ala.  751; 

55.  Perkins  v.  Stone,  18  Conn.  270 ;  Adams 

^  See  post  as  to  distribution  in  cases  v.  Adams,  11   B.  Mon.  77;   Spraddling 

of  ancillary    administration;    Davis    v.  v.  Pippin,  15  Mo.  117;   Clark  z'.  Clem- 

Estey,  8  Pick.  475;   Mitchell  v.  Cox,  22  £nt,  ^  N.  H.  563;  Collins  ta  Bankhead, 

Ga.  32;   Normand  v.  Grognard,   14  N.  i  Strobh.  (S.  C.)  25;   Green  v.  Rugely, 

J.  L.  425.  23  Tex.  539. 

229 


§   169  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

of  personal  property  governs  in  regard  to  the  right  of  succes- 
sion, whether  such  owner  die  testate  or  intestate  ; '  or  to  cite 
the  broader  fundamental  maxim,  rnobilia  seqim)itur personam^ 

§  168.  Principal  Letters  need  not  precede  the  Ancillary. — 
But,  fifth,  since  each  local  sovereignty  may  act  independently 
of  all  others  in  conferring  the  local  grant,  out  of  regard  to 
local  convenience,  and  since  what  might  otherwise  be  or  be- 
come ancillary  may  stand  alone,  it  is  not  necessary  that  prin- 
cipal and  ancillary  administration  should  be  committed  in 
consecutive  order.  Thus,  the  will  of  a  non-resident  testator 
need  not  be  proved  in  the  State  or  country  of  his  last  domi- 
cile, before  the  domestic  State  can  grant  valid  letters  upon 
his  estate  situated  within  its  local  confines  ;  ^  though,  if  it 
were  shown  after  the  domestic  State  had  granted  letters  as 
upon  an  intestate  estate,  that  the  deceased  left  a  will  which 
was  duly  probated  in  his  last  and  foreign  domicile,  the  domes- 
tic domicile  should  revoke  the  grant  and  proceed  to  appoint 
as  in  case  of  testacy.^  Nor  is  it  essential  that  adniinistration 
be  granted  on  an  intestate  estate,  in  the  place  of  the  domicile 
of  the  deceased,  before  an  administrator  is  appointed  in  an- 
other state  or  country,  where,  agreeably  to  local  law,  admin- 
istration is  proper.^  And  once  more,  administration  granted 
in  one  State,  on  property  there  situated  of  a  resident  of 
another  State,  is  not  impaired  or  abridged  by  the  previous 
grant  of  administration  in  such  other  State  ;  ^  though  the  dis- 
tribution and  final  disposition  of  proceeds  may  be  affected  in 
consequence. 

§  169.  Foreign  and  Domestic  Probate  and  Letters  Testamen- 
tary; English  Doctrine.  —  The  foregoing  are  the  propositions 
mainly  to  be  considered  in  the  present  connection  ;  and  now 

1  See     Sir     Cresswell     Cresswell     in  *  See    Shepard    v.    Rhodes,    60    111. 

Crispin  z/.  Doglioni,  9  Jur.  N.  S.  653;  301. 

S.   C.   L.    R.    I    H.   L.  301 ;    Enohin  v.  ^  Stevens  v.  Gaylord,  1 1    Mass.  256  ; 

Wylie,   10   H.    L.   Cas.    i;    Wilkins  v.  Pinney  f.  McGregory,  102  Mass.   192; 

Ellett,  108  U.  S.  256.  Rosenthal  v.  Remick,  44  111.  202. 

^  Movables  follow  the  person.  ^  Crosby  v.  Gilchrist,  7  Dana,  206  ; 

^  Bowdoin  v.  Holland,  10  Cush.  17  ;  Pondz'.  Makepeace,  2  Met.  114. 
Burnley  v.  Duke,  i  Rand.  (Va.)  108. 

230 


CHAP.  VII.]      FOREIGN    AND    ANCILLARY   APPOINTMENTS.       §    1 69 

to  apply  them  to  the  probate  of  wills  and  the  grant  of  letters 
testamentary.  In  England,  the  last  domicile  of  the  deceased 
is  firmly  respected,  in  all  matters  of  administration  as  to  per- 
sonalty. "All  questions  of  testacy  or  intestacy,"  observes 
Lord  Chancellor  Cranworth,  in  a  modern  case,^  "  belong  to  the 
judge  of  the  domicile.  It  is  the  right  and  duty  of  that  judge 
to  constitute  the  personal  representative  of  the  deceased.  To 
the  court  of  the  domicile  belong  the  interpretation  and  con- 
struction of  the  will  of  the  testator.^  To  determine  who  are 
the  next  of  kin  or  heirs  of  the  personal  estate  of  the  testator, 
is  the  prerogative  of  the  judge  of  the  domicile.  In  short,  the 
court  of  domicile  is  the  forinn  concicrsjis  to  which  the  lega- 
tees, under  the  will  of  the  testator,  or  the  parties  entitled  to 
the  distribution  of  the  estate  of  an  intestate,  are  required  to 
resort."  And  hence,  as  between  testacy  or  intestacy,  it  is 
held  that  the  courts  of  the  last  domicile  must  determine  ;  and 
that,  so  far  as  personalty  is  concerned,  a  will  must  be  exe- 
cuted according  to  the  law  of  the  country  where  the  testator 
was  domiciled  at  the  time  of  his  death. ^  An  English  court 
of  probate  jurisdiction  may,  doubtless,  ascertain  what  was  in 
fact  the  last  domicile  of  the  party  whose  will  has  been  pre- 
sented for  probate ;  but  if  probate  be  judicially  granted,  the 
conclusive  inference  is,  that  the  will  must  have  been  executed 
according  to  the  law  of  testator's  last  domicile.*  We  here 
refer  to  wills  of  personalty,  in  strictness ;  for,  with  respect  to 
real  property,  the  descent,  devise,  or  conveyance  thereof,  and 
other  general  incidents  affecting  its  title  and  transfer,  the  law 

1  Enohin  v.  Wylie,  10  H.  L.  Cas.  i,     see  in  general  Story  Confl.  Laws,  §  638; 
cited    by    Sir    Cressvvell    Cresswell    in     supra,  §§  15,  17. 

Crispin  v.  Doglioni,  L.  R.  i  H.  L.  ^  Whicker  v.  Hume,  7  H.  L.  Cas. 
301.  124  ;   Douglas  V.  Cooper,  3  Myl.  &  K. 

2  This  statement  is  subject  to  quali-     378. 

fication.  Domestic  courts  incline  to  *  i  Redf.  Wills,  398  ;  Whicker  v. 
weigh  the  foreign  proofs  and  explana-  Hume,  7  H,  L.  Cas.  124.  But  where  the 
tions  procurable,  but  with  such  extra-  transcript  of  foreign  probate  fails  to  show 
neous  assistance  to  interpret  the  instru-  an  adjudication  by  the  court,  but  that 
ment  upon  domestic  principles  of  con-  the  clerk  issued  the  letters  on  his  own 
struction.  See  Wms.  Exrs.  370,  371,  authority,  this  is  a  ministerial  act  on  the 
and  Perkins's  «.,•  Di  Sora  v.  Phillipps.  face,  and  the  domestic  court  may  inquire 
10  H.  L.  Cas.  633,  639,  640  ;  United  collaterally  into  the  sufficiency  of  the 
States  V.  McRae,  L.  R.  3  Ch.  86.     And     grant.     Illinois   Central    R.    v.   Crazin, 

71  111.  177. 
231 


§    169  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

of  local  situation  appears  to  have  constantly  prevailed  in 
English  law.^ 

Accordingly,  the  will,  so  far  at  least  as  personalty  is  con- 
cerned, must  conform  to  the  place  of  the  testator's  last 
domicile ;  and  the  law  of  this  last  domicile  decides,  as  to  one 
domiciled  abroad,  what  was  his  last  will,  how  and  by  whom 
such  will  is  to  be  executed,  and  in  general,  all  questions  of 
one's  testacy,  testamentary  capacity,  and  disposing  power.^ 
Modern  statutes  and  modern  probate  practice  provide  for 
the  authentication  of  foreign  wills  where  local  and  domestic 
convenience  requires  it.  An  official  copy  of  the  probate,  or 
act  of  recognition  of  the  will  by  the  court  of  such  foreign 
domicile,  should  be  produced  before  the  local  probate  tribunal, 
with  a  translation  or  a  re-translation  of  the  will,  as  may  be 
deemed  suitable.^ 

Under  a  will  of  this  character  thus  exemplified,  the  foreign 
executor  is  respected  in  the  English  courts.  If  the  executor, 
constituted  under  a  foreign  will,  finds  occasion  to  institute 
a  suit  in  English  jurisdiction  for  the  purpose  of  recovering 
local  assets,  he  must  prove  his  will  before  the  English  probate 
tribunal,  and  procure  local  authority  or  constitute  some  per- 
sonal ancillary  representative,  as  by  virtue  of  his  foreign  ap- 
pointment. And  so,  too,  where  it  is  intended  that  the  foreign 
will  shall  operate  upon  local  property.*  Without  an  English 
grant  he  cannot  sue  or  exercise  general  authority  as  to  Eng- 
lish assets  of  the  estate.  But  the  probate  tribunals  of 
England  will,  in  such  cases,  follow  the  grant  of  the  court  of 
that  foreign  country  where  the  deceased  died  domiciled ;  and 
the  last  will  sanctioning  his  appointment  having  been  authen- 
ticated abroad  and  proved  by  exemplified  copy  in  the  proper 
English  probate  court,  the  latter  court  will  clothe  him  with 
the  needful  ancillary  authority  to  enable  him  to  execute  his 

1  I  Vern.   85  ;   Brodie  v.  Barry,  2  V.         ^  i    Hagg.    Ec.    373,   498  ;    Price   v. 

&  B.    131 ;     Freke    v.   Lord    Carbery,  Dewhurst,  4  M.  &  Cr.  76,  82  ;   Wnis. 

L.  R.  16   Eq.  461.     See   act  24  &   25  Exrs.  366. 

Vict.  c.  114;   the  new  English  wills  act.         ^  Qg  Vigny,  In   re,   13  L.  T.  N.  S. 

Modern  jurisprudence  favors  the  execu-  246;     L'Fit     v.    L'Batt,     I    P.    Wms. 

tion  of  wills  with  the  same  formalities,  526. 
regardless    of     the    character    of    the         *  Wms.  Exrs.  362, 
property  to  be  transmitted.    Supra,  §  8. 

232 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    I/O 

local  functions.^  As  to  the  probate  tribunal  and  the  general 
mode  of  administration,  and  to  a  certain  extent  in  the  con- 
struction of  the  will,  the  law  of  the  place  where  the  per- 
sonal estate  is  situated,  and  where  ancillary  letters  are  sought, 
must  prevail.^ 

§  170.  The  same  Subject;  American  Doctrine. —  In  the 
United  States  the  same  general  rules  prevail  as  to  probate 
and  executors,  subject,  however,  to  much  statute  regulation. 
Probate  and  administration  are  local,  and  the  foreign  executor 
has  no  authority  as  such  which  local  tribunals  are  bound  to 
obey.^  It  has  been  regarded  as  not  indispensable  to  the 
proof  of  a  foreign  will,  in  the  courts  of  another  place  than 
that  of  the  testator's  domicile,  that  the  foreign  probate  should 
be  recorded  in  the  domestic  probate  court ;  though  it  must 
be  shown  in  evidence  that  the  will  has  been  duly  admitted  to 
probate  in  the  proper  tribunal  of  the  testator's  domicile.* 
But  it  is  now  the  American  practice,  fortified  by  local  legis- 
lation, for  the  executor  or  other  person  interested  in  a  will, 
which  has  been  proved  and  allowed  in  any  other  of  the  United 

1  Wms.  Exrs.  370  ;  Enohin  v.  Wylie,  Gatti,  Goods  of,  27  W.  R.  323.  See  as 
10  H.  L.  Gas.  14.  The  duly  appointed  to  Scotch  assets,  Sterling-Maxwell  v. 
attorney  of  the  person  in  interest  may  Cartwright,  L.  R.  9  Ch.  D.  173  ;  L.  R. 
be  selected  to  administer  under  the  will  11  Ch.  D.  522;  Wms.  Exrs.  363. 
upon  the  usual  principles.  Dost  Ali  English  courts  have  jurisdiction  to  ad- 
Khan,  Goods  of,  L.  R.  &  P.  D.  6.  The  minister  trusts  of  a  will  as  to  the  whole 
English  statute  24  &  25  Vict.  c.  114,  estate,  both  Scotch  and  English,  though 
provides  as  to  wills  made  by  British  sub-  the  testator  be  domiciled  in  Scotland, 
jects  dying  after  August  6,  1861,  that  Ewing  v.  Ewing,  9  App.  Gas.  34. 
every  such  will  made  out  of  the  king-  ^  Price  v.  Dewhurst,  4  ISL  &  Cr.  76  ; 
dom  shall,  as  regards  personal  estate,  be  Reynolds  v.  Kurtwright,  18  Beav.  417  ; 
held  to  be  well  executed,  if  made  ac-  supra,  §§  15-17.  As  to  the  will  of  a 
cording  to  the  law  of  the  place  where  it  foreigner  made  in  England,  according 
was  made,  or  where  a  testator  was  then  to  English  law,  see  Lacroix,  Gootls  of, 
domiciled,  or  where  he  had  his  domicile  L.  R.  2  P.  D.  97  ;  Gaily,  Goods  of,  24 
of  origin.     See  Wms.  Exrs.  374.     This  W.  R.  1018. 

changes  much  of  the  law   previously  in  ^  See  supra,  §  164.     A  court  of  one 

force  in   that    country  on    the   subject.  State  need  not  recognize   the   removal 

Apart  from  such  legislation  (which  does  of  an  executor  there  appointed,  which 

not  apply  to  aliens)   the  will  of  a  for-  the  court  of  another  State  orders.     Till- 

eigner    executed    abroad    with    English  man  v.  Walkup,  7  S.  C.  60. 

formalities  is  not  on  that  consideration  ■*  Townsend  v.  Moore,  8  Jones  Law, 

entitled     to     English     probate.       Von  187  ;   Jemison  v.  Smith,  37  Ala.  1S5. 
Ruseck,  Goods  of,  L.   R.  6  P.  D.    21 1 ; 


5    1 71  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

States  or  in  a  foreign  country,  to  produce  a  copy  of  the  will 
and  of  the  probate  thereof,  duly  authenticated,  to  the  probate 
court  in  any  county  of  the  domestic  State  in  which  there  is 
any  estate  real  or  personal  upon  which  the  will  may  operate, 
or  assets ;  and  upon  his  petition,  after  due  citation  and  a 
hearing,  the  court  orders  the  copy  to  be  filed  and  recorded. 
This  gives  the  will  the  same  effect  as  if  it  had  been  originally 
proved  and  allowed  in  such  domestic  State.  After  the  will 
is  so  allowed  and  ordered  to  be  recorded,  the  court  grants 
letters  testamentary  or  of  administration  with  the  will  an- 
nexed, with  a  qualification  as  circumstances  may  require,  and 
proceeds  to  the  settlement  of  the  estate  which  may  be  found 
in  such  State.^ 

§  171.  "Whether  Will,  to  be  operative,  must  conform  to  the 
Law  of  Last  Domicile.  —  Aside  from  statute,  a  will  to  be  oper- 
ative must,  according  to  the  better  authority,  conform  to  the 
law  of  the  place  of  the  testator's  last  domicile.^  But,  by 
statute,  it  is  now  quite  frequently  provided  that  a  will 
executed  out  of  the  local  jurisdiction,  in  conformity  with  the 
law  of  the  place  where  made,  shall  effectually  prevail  within 
such  local  jurisdiction.  The  formal  probate  of  such  a  will 
is  the  same  as  that  usually  pursued  ;  the  testator's  soundness 
of  mind,  capacity,  and  disposing  intent  should  appear ;  and 
though  the  particular  facts  to  be  proved  must  depend  upon 
requirements  of  the  local  law  in  which  the  will  was  executed, 

1  See  Beers  v.  .Shannon,  73  N.  Y.  with  the  domiciliary  probate,  or  raise 
292 ;  Mass.  Gen.  Stats,  c.  92  ;  Parker  issues  which  properly  belong  to  that 
V.  Parker,  II  Cush.  519;  Leland  v.  forum  to  determine,  see  Loring  z'.  Oakey, 
Manning,  4  Hun  (N.  Y.)  7  ;  Arnold  98  Mass.  267.  As  to  a  foreign  tran- 
V.  Arnold,  62  Ga.  627  ;  Butler's  Succes-  script  indicating  no  adjudication,  see 
sion,  30  La.  Ann.  887.  The  copy  of  the  Illinois  Central  R.  v.  Crazin,  71  111.  177. 
will  and  of  the  decree  of  the  court  of  An  executor  appointed  in  the  State 
original  jurisdiction  are  conclusive,  in  where  the  testator  was  domiciled  may 
the  absence  of  fraud,  of  all  the  facts  accept  the  office  in  such  State  and  re- 
necessary  to  the  establishment  of  the  nounce  it  in  the  State  of  local  assets, 
will,  the  regularity  of  the  proceedings.  Hooper  v.  Moore,  5  Jones  L.  130. 
etc.  Crippen  v.  Dexter,  13  Gray,  330.  2  gtory  Confl.  Laws,  §  468  ;  i  Binn. 
The  object  is  to  furnish  genuine  docu-  336  ;  Stanley  v.  Bernes,  3  Hagg.  373  ; 
mentary  proof  of  the  original  probate.  Moore  v.  Darrell,  4  Hagg.  346.  But 
Helme  v.  Sanders,  3  Hawks,  566.  That  cf.  Roberts's  Will,  8  Paige,  519;  Curl- 
the  court  of  local  assets  is  not  to  meddle  ing  v.  Thornton,  2  Add.  6,  lO. 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    1/2 

the  same  certainty  of  proof  is  essential  as  if  the  will  had 
been  made  in  the  place  of  local  jurisdiction.^  There  has 
been  much  conflict,  and  among  continental  jurists  especially, 
as  to  whether  a  will  executed  in  accordance  with  the  law,  both 
of  the  place  where  made  and  of  the  testator's  domicile  at  the 
time  of  its  execution,  shall  be  inoperative  merely  for  not  con- 
forming with  the  law  of  the  place  of  the  testator's  domicile 
at  the  time  of  his  death  ;  ^  but  even  here  the  general  rule 
obtains,  requiring  conformity  to  the  law  of  last  domicile 
under  all  circumstances ;  which  rule,  however,  has  been  re- 
versed by  legislation  as  to  personal  property,  if  not  property 
whether  real  or  personal.^  A  will  need  not  have  been  exe- 
cuted according  to  the  law  of  the  State  in  which  ancillary 
letters  are  desired,  except  that  a  will  of  real  property  must 
conform  to  the  law  of  local  situation.^ 

§  172.  Foreign  and  Domestic  Administration.  —  Next,  as  to 
administration  and  the  estates  of  intestates.  Administration 
must  be  taken  out  in  the  State  or  country  where  there  are 
assets  to  be  administered,  as  well  as  in  the  country  of  the  in- 
testate's last  domicile ;  for,  as  we  have  seen,  a  local  appoint- 
ment can  alone  confer  local  authority."  Administration, 
whether  principal  or  ancillary,  aims  in  theory  to  distribute  ac- 
cording to  the  law  of  the  country  in  which  the  deceased  had 
his  last  domicile  ;  and  the  right  of  appointment  might  well  fol- 
low the  interest  accordingly  ;  ^  nevertheless,  statutes  in  force  at 
the  place  where  jurisdiction  is  taken,  practically  control  the 
subject.^     Under,  or  independently  of  statute  provisions,  the 

1  See  Bayley  v.  Bailey,  5  Cush.  245.  Hagg.  93.  Domiciliary  administrator  may 

2  Moultrie  v.  Hunt,  23  N.  Y.  394;  appeal  from  local  grant.  17  N.  E.  310. 
Irwin's  Appeal,  2>i  Conn.  128  ;  Story  "  This  subject  receives  consideration 
Confl.  Laws,  §  473.  in  c.  3,  supra.     It  would  appear  that  a 

^English  act  24  &  25  Vict.  c.   114;  foreign  consul  has  no  right, on  principle 

Bayley  v.  Bailey,  5  Cush.  245  ;   supra,  of  mere  comity,  to  take  posscs^ion  of  a 

§  169.  deceased  foreigner's  estate  in  a  particu- 

*  Langbein  Re,  i  Demarest,  448.  lar    local  jurisdiction.     Local    statutes, 

^  Supra,  §  22.  which  vest  the  right  in  a  public  admin- 

^  Wins.  Exrs.  430  ;   Johnston,  Goods  istrator,  or  other  local  functionary,  are 

of,  4  Hagg.  182.     A  party  who  applies  decisive  of  the  local  controversy.     See 

as  agent  of  anon-resident  entitled  to  ad-  Aspinwall  i'.  Queen's   Proctor,   2  Curt. 

minister  must  exhibit  proper  authority,   i  241 .     The  English  statute  24  &  25  Vict 


§    1/3  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

rule  generally  obtains  in  England  and  our  several  States,  that 
whenever  an  intestate  foreigner  or  non-resident  dies  leaving 
estate  to  be  administered  in  the  local  jurisdiction,  adminis- 
tration of  such  estate  may  therein  be  granted  ;  such  admin- 
istration, in  case  of  a  grant  in  the  jurisdiction  where  the 
intestate  had  his  last  domicile,  becoming  ancillary  to  the  prin- 
cipal grant.  The  law  of  the  local  situation  of  the  personalty 
governs  the  grant  of  administration.^  And  the  local  statute 
may  apply  in  general  terms  to  those  who  die  without  the 
State,  leaving  property  within  the  same  to  be  administered 
upon,  whether  the  deceased  were  alien  or  citizen.^ 

§  173.  Foreign  Appointment  of  Executors  or  Administrators 
Unavailable  in  Domestic  Jurisdiction ;  Local  Letters  required ; 
Exceptions.  —  The  executor  or  administrator  appointed  in 
one  State  or  country  has,  therefore,  no  right  of  control,  as 
such,  over  property  in  another  State  or  country.  As  to 
external  assets,  he  cannot  interfere.  He  has  no  power  to  col- 
lect debts  or  incorporeal  personalty  in  such  other  State  or 
country  ;  nor,  perhaps,  to  discharge.^  He  cannot  control  lands 
so  situated.*  Nor  can  he  be  sued  or  defend  a  suit  as  execu- 
tor or  administrator  in  one  State  or  country  by  reason  of  an 
appointment  conferred  in  another.^     The  well-settled  rule  is 

c.  121,  provides  that   the  consul  of  a  Elliot,  10  Cush.  172;   Chapman  7^.  Fish, 

foreign  State  may  administer  in  English  6  Hill,  555;  McClure  v.  Bates,  12  Iowa, 

jurisdiction,  where  reciprocal  rights  are  77;    Sabin    v.    Gilman,    i    N.   H.    193; 

secured  by  convention  in  such   foreign  Cockleton    v.    Davidson,    i    Brev.    15; 

State  to  British   consuls.     Wnis.   Exrs.  Doe    v.    McFarland,    9    Cranch,    151; 

430.     But  the  nature  of  probate  juris-  Kerr  w.  Moon,  9  Wheat.  566;  Mansfield 

diction   in   our   several  States    forbids,  v.  Turpin,  32  Ga.  260;   Union  Mutual 

apparently,  any  treaty  stipulation  of  this  Life  Ins.  Co.  v.  Lewis,  97  U.  S.  Supr. 

kind  on  the  part  of  the  United  States  682;    Ferguson  v.  Morris,  67  Ala.  389. 
government.  *  Apperson  v.  Bolton,  29  Ark.  418; 

1  Isham  V.  Gibbons,  i  Bradf.  (N.  Y.)  Sheldon  v.  Rice,  30  Mich.  296;  16  Neb. 
69;    Plummer  v.   Brandon,  5  Ired.  Eq.  418. 

190;    Willing  V.  Perot,  5  Rawle,  264;         ^  AUsup   v.    Allsup,    10    Yerg.    283; 

Woodruff  J/.  Schultz,  49  Iowa,  430.  Curie  v.  Moore,   i   Dana,  445;   Winter 

2  Piquet,  Appellant,  5  Pick.  65.  i>-  Winter,  i   Miss.  (Walk.)  211;   Ver- 
^  Supra,  §    164;    U.    S.    Digest,    1st  milya  v.  Beatty,  6  Barb.  429;    Norton 

series,     Executors     &     Administrators,  v.  Palmer,  7  Cush.  523;   Kerr  v.  Moon, 

4432-4455;  Sanders  z/.  Jones,  8  Ired.  Eq.  9  Wheat.  565;    Hedenberg  v.  Heden- 

246;    People  z/.   Peck,  4  111.   118;    Pond  berg,  46  Conn.  30;    Patterson  z/.  Pagan, 

V.  Makepeace,  2  Met.  114;   Beaman  v.  8  S.  C.  584;  Sloan  v.  Sloan,  21  Fla.  589. 

236 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    1 73 

that  administration  operates  of  right  only  in  the  State  or 
country  where  it  was  granted,  and  there  may  operate  exclu- 
sively of  all  foreign  appointment ;  and  that,  before  one  can 
be  recognized  in  a  jurisdiction  as  personal  representative  of 
the  deceased,  he  must  be  clothed  with  the  correspondent 
probate  authority  which  the  sovereignty  of  that  jurisdiction 
is  competent  to  confer,  or  at  least  to  conform  to  requirements 
which  the  local  law  sees  fit  to  impose.^ 

To  this  rule,  however,  are  exceptions,  grounded  in  comity 
or  favor.  Some  American  States  permit  a  foreign  executor 
or  administrator  qualified  abroad  to  sue  for  local  assets 
belonging  to  the  estate  of  the  deceased,  without  qualifying 
under  a  local  probate  appointment ;  which  permission,  how- 
ever, being  in  derogation  of  sovereign  right,  the  statutes 
which  prescribe  the  terms  of  such  suits,  as  by  record,  or 
otherwise,  must  be  strictly  followed.  If  qualified  locally 
according  to  the  laws  of  that  particular  State,  by  probate 
appointment  or  otherwise,  he  may  sue  and  collect,  of  course.^ 
So  have  statutes  permitted  the  non-resident  executor  or 
administrator  to  defend  local  suits  on  similar  terms  ;^  or 
made  him  subject  to  suits  by  attachment.^  Foreign  repre- 
sentatives, by  virtue  of  the  property  belonging  either  to  the 
estate,  or  to  themselves,  or  their  own  place  of  local  resi- 
dence, are  sometimes  made  amenable  in  equity  courts  of  the 
local  jurisdiction,  as  we  shall  see  hereafter,  for  fraudulent 
conduct  and  delinquency  in  their  trust,  or  intermeddling ;  a 

A    court    of    chancery    cannot    decree  4  Cranch,  C.  C.  368.    But  the  appointee 

against  a  foreign  administrator  as  such,  of  the  District  has  the  usual  immunities. 

Sparks  z^.  White,  7  Humph.  86.  Vaughan  v.  Northup,   15  Pet.   i.     The 

1  Turner  v.  Linani,  55  Ga.  253;   Bells  foreign    appointee   on   the   estate   of    a 

V.  Nichols,  38  Ala.  678;    Kansas  Pacific  domiciled    citizen    is   not    likely   to   be 

R.  V.  Cutler,    16   Kan.   568;    Moore  v.  recognized  in  the   domiciliary  juiisdic- 

Fields,  42  Penn.  St.  467;    Price  v.  Mor-  tion    as    having  the    right  to    sue    or 

ris,  5  McLean,  4;   Naylor  v.  Moody,  2  collect.     Southwestern  R.  v.  Paulk,  24 

Blackf.   247;    Rockham  v.  Wittkowski,  Ga.  356. 

64  N.  C.  464.     As  to  the  running  of  -  Hobart    v.    Connecticut    Turnpike 

limitations    against    such    foreign    ap-  Co.,  15  Conn.  145;   Crawford  J'.  Ciraves, 

pointee,  see  Bells  v.  Nichols,  supra.     A  15  La.  Ann.  243;   Naylor  v.  .MofTatt,  29 

State  administration  granted  upon  bona  Mo.  126;    Banta  v.  Moore,  15  N.  J.  Eq. 

notabilia     may     enable    the    adminis-  97;    70  Cal.  403. 

trator  to  recover  assets  in  the  District  ^  Moss  v.  Rowland,  3  Bush,  505. 

of  Columbia.      Blydenburgh  v.  Lovvry,  *  Cady  v.  Bard,  21  Kan.  667. 


§    173  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

principle  which  runs  deep  in  chancery  practice.^  And  local 
statutes  enable  foreign  executors  or  administrators  to  sell  or 
deal  with  real  estate  in  the  local  situs  for  due  administration 
purposes,  or  to  transfer  local  stock,  or  to  perform  various 
other  specified  acts  in  the  local  jurisdiction. ^ 

The  executor  or  administrator  appointed  in  another  State 
has  been  permitted  to  maintain  an  action  on  a  judgment 
there  recovered,  on  the  ground  that  such  suit  need  not  be 
brought  in  the  official  character.'^  Also  by  indorsement  or 
without  it,  as  the  case  may  require,  to  enable  his  assignee  or 
transferee  to  sue  on  a  negotiable  instrument  or  other  written 
evidence  of  debt  in  another  State,  although  he  might  not 
have  sued  directly  upon  it  as  a  representative  of  the  de- 
ceased ;  *  and,  indeed,  one  might,  in  his  own  name,  sue  on  a 
negotiable  instrument  payable  to  bearer,  its  production  in  the 
local  court  affording />nf;id  facie  evidence  of  the  right  to  sue 
and  collect.^  The  right  of  a  foreign  executor  or  administra- 
tor to  assign  or  indorse  in  such  capacity,  so  as  to  confer  a 
right  to  sue  in  the  foreign  local  court,  has,  however,  been 
questioned.^  Upon  a  contract  made  with  himself,  as  execu- 
tor or  administrator,  a  foreign  executor  or  administrator  may 
sue.^ 


1  See  Montalvan  v.  Clover,  32  Barb.  v.  Austin,  4  Mason,  16;  Biddle  v. 
190;  Evans  v.  Tatem,  9  S.  &  R.  252;  Wilkins,  i  Pet.  686;  70  Cal.  403.  But 
Field  V.  Gibson,  56  How.  (N.  Y.)  Pr.  the  fact  that  a  foreign  administrator 
232;  Colbert  v.  Daniel,  32  Ala.  314;  had  recovered  judgment  as  such  will 
Patton  V.  Overton,  8  Humph.  192;  Tun-  not  entitle  him  to  sue  in  Georgia,  save 
stall  V.  Pollard,  II  Leigh,  l;  Powell  v.  upon  compliance  with  the  local  re- 
Stratton,  1 1  Gratt.  792.  The  rule  of  quirement  of  filing  a  copy  of  his  letters, 
charging  a  foreign    executor  who   has  Buck  v.  Johnson,  67  Ga.  82. 

not   taken  out  local  letters  is  not   uni-  *  Petersen     v.    Chemical    Bank,    32 

formly  asserted,  and  gives  rise  to  vari-  N.  Y.  21;    Leake  v.  Gilchrist,  2  Dev.  L. 

ous  opinions.     See  Story  Confl.  Laws,  73.    Bond   and  mortgage  may  be   thus 

§  514  b,  and  notes.  assigned  so  as  to  confer  a  right  to  fore- 

2  See  Williams  v.  Penn.  R.,  9  Phila.  close.  Smith  v.  Tiffany,  16  Hun,  562. 
(Pa.)  298;   local  codes;  rights  of  exec-  Cf.  20  S.  C.  167. 

utors,  etc.,  as  to  real  estate, /oj/;  Luce  ^  g^rrett  v.   Barrett,  8  Greenl.  353; 

V.  Manchester  R.,  63  N.  H.  588.  Robinson  v.  Crandall,  9  Wend.  425. 

^Talmage  v.   Chapel,   16    Mass.  71;  «  Stearns  z/.  Burnham,  5  Greenl.  261; 

Barton     v.     Higgins,     41     Md.     539;  Thompson  v.  Wilson,  2  N.  H.  291. 

Young  V.  O'Neal,  3  Sneed.  55;    Slauter  ''  Lawrence  v.  Lawrence,  3  Barb.  Ch. 

V.  Chenowith,  7  Ind.  211;   Trecothick  71;   Barrett  v.  Barrett,  8  Greenl.  346; 

238 


CHAP.   VII.]     FOREIGN    .\ND    ANCILLARY    APPOINTMENTS.      §    1 74 

§  1 74.  Principal  and  Ancillary  Letters  ;  Comity  as  to  trans- 
mitting Assets  for  Distribution,  after  Local  Debts  are  satisfied. 
—  The  estate  of  a  deceased  person  is,  substantially,  one 
estate,  and  in  this  sense  the  residuary  legatees  or  distributees 
are  interested  in  it  as  a  whole,  even  though  it  be  spread 
through  various  jurisdictions  ;  while,  as  a  rule,  each  adminis- 
tration must  be  settled,  so  to  speak,  in  the  jurisdiction  where 
it  was  granted.  When  any  surplus  remains  in  the  hands  of 
a  foreign  or  ancillary  appointee,  after  paying  all  debts  in  that 
jurisdiction,  the  foreign  court  will,  in  a  spirit  of  comity  and 
as  a  matter  of  judicial  discretion,  order  it  to  be  paid  over  to 
the  domiciliary  executor  or  administrator,  if  there  be  one, 
instead  of  making  distribution  ;  ^  in  which  case,  the  fund  is 
applicable  to  debts,  legacies,  and  expenses  at  the  principal 
jurisdiction,  as  well  as  to  distribution.^  The  rule  to  thus 
pay  over  is  not,  however,  absolute  ;  on  the  contrary,  the 
transfer  will  not  be  made  if  deemed,  under  the  circumstances, 


Du  Val.  V.  Marshall,  30  Ark.  230 ;  Trot- 
ter V.  White,  ID  Sm.  &  M.  607;  Story 
Confl.  Laws,  §§  513,  516,  517. 

"  The  administrator,  by  virtue  of  his 
appointment  and  authority  as  such,  ob- 
tains the  title  in  promissory  notes  or 
other  written  evidences  of  debt,  held  by 
the  intestate  at  the  time  of  his  death, 
and  coming  to  the  possession  of  the 
administrator,  and  may  sell,  transfer, 
and  endorse  the  same;  and  the  pur- 
chasers or  endorsees  may  maintain  ac- 
tions in  their  own  names  against  the 
debtors  in  another  State,  if  the  debts  are 
negotiable  promissory  notes,  or  if  the 
law  of  the  State  in  which  the  action  is 
brought  permits  the  assignee  of  a  chose 
in  action  to  sue  in  his  own  name."  Mr. 
Justice  Gray,  in  Wilkins  v.  Ellett,  108 
U.  S.  256,  258.     See  §  176,  post. 

The  principal  administrator,  unless 
forbidden  by  statute,  may  sell  and 
assign  stock  of  a  local  corporation 
where  no  ancillary  administration  exists. 
Luce  V.  Manchester  R.,  63  N.  H.  588. 
A  State  which  charters  a  corporation  is 
its  domicile  in  reference  to    the  debts 


which  it  owes,  for  there  only  can  it 
be  sued  or  found  for  the  services  of 
process.  This  is  now  changed  con- 
siderably by  legislation,  so  that  a  cor- 
poration of  one  State  doing  business  in 
another  is  made  suable.  See  N.  E. 
Mutual  Life  Ins.  Co.  iii  U.  S.  138; 
96  U.  S.  369;  Railroad  Co.  v.  Harris, 
12  Wall.  65. 

Injunction  refused  to  prevent  a 
foreign  executor  from  removing  assets 
from  the  jurisdiction,  where  no  especial 
grounds  demanding  relief  were  shown. 
51  N.  Y.  Super.  441. 

1  Wright  V.  Phillips,  56  Ala.  69. 

"^  Such  transmission  is  natural  and 
proper  where  it  appears  that  no  debts 
were  owing  in  the  ancillary  jurisdiction. 
Wright  z^.  Gilbert,  51  Md.  146.  Where 
a  foreign  distributee  is  an  infant,  this  is 
preferable  to  ordering  payment  to  his 
"  foreign  guardian."  Twimble  v.  Dzied- 
zyiki,  57  How.  (N.  Y.)  Pr.  208.  See 
also  Wms.  Exrs.  1664,  and  Perkins's 
note;  Story  Confl.  Laws,  §  513;  Low 
V.  Bartlett,  8  Allen,  259;  Mackey  v. 
Coxe,  1 8  How.  (U.  S.)  100. 


239 


§    174  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

improper ;  ^  and  legislative  policy  is  to  secure  the  rights  of 
its  creditors  and  citizens  at  all  hazards.  The  legal  personal 
representative  constituted  by  the  forum  of  the  domicile  of 
a  deceased  intestate  is  usually  the  person  entitled  to  receive 
and  give  receipts  for  the  net  residue  of  his  personal  estate 
obtained  in  any  country.^  And  to  such  legal  representative 
claimants  who  are  not  creditors  of  the  estate,  and  especially 
residuaries  and  distributees,  should  report.^  Distribution  of 
the  estate,  and  the  rights  of  legatees  and  of  the  surviving 
husband  or  widow,  affecting  the  surplus,  should  be  regulated 
by  the  law  of  the  domicile  of  the  testator  or  intestate,  at  the 
time  of  his  decease.* 

But  as  to  the  payment  of  local  debts  out  of  the  local 
assets,  the  law  of  the  place  under  which  an  ancillary  admin- 
istration is  taken,  must  govern ;  ^  and  the  satisfaction  of 
local  creditors,  in  full  or  pro  rata,  according  as  the  general 
solvency  or  insolvency  of  the  estate  may  require,  or  the  local 
statute  prescribes,  is  incumbent  upon  the  ancillary  adminis- 
trator, before  he  remits  the  balance  to  the  forei'gn  executor 
or  administrator.^  For  the  spirit  of  comity  does  not  require 
that  citizens  shall  be  put  to  the  inconvenience  and  expense 
of  proving  and  collecting  their  claims  abroad  when  there 
are  assets  at  hand,  and  that  local  rules  for  distributing  an 
insolvent's  estate  shall  yield  to  foreign  ;  nor,  on  the  other 
hand,  can  it  approve  of  the  absorption  of  local  assets  by  local 

1  Williams  v.   Williams,  5  Md.  467;  '^  Eames   v.    Hacon,   50    L.    J.    Ch. 

Lawrence  v.  Kitteridge,  21   Conn.  577;  740. 

Gilchrist  v.  Cannon,  i  Coldw.  581  ;  Por-  ^  Brown  v.  Brown,  i    Barb.  Ch.    189; 

ter  V.  Heydock,  6  Vt.  374;    Fretwell  v.  Richards  v.  Dutch,  8  Mass.  506;  Camp- 

Lemore,  52  Ala.  124;    Harvey  v.  Rich-  bell  v.  Sheldon,  13  Pick.  23. 

ards,    I    Mason,  381;    Hughes,    Ke,<)^  ^  Churchill  v.   Prescott,  3  Bradf.  (N. 

N.  Y.  55.     As  between  different  States,  Y.)  233;    Oidronaux  v.  Helie,  3  Sandf. 

assets  will  be  more  readily  transmitted  Ch.  512;    Goodall  i/.  Marshall,  11  N.  H. 

in  avoidance  of  claimants  of  the  residue,  88;   Jones  v.  Gerock,  6  Jones  (N.  C.) 

semble,    than     where    the    domiciliary  Eq.    190;   Tucker  v.    Candy,    10   Rich, 

jurisdiction  was  a  foreign  one.    Aspden  Eq.  12. 

V.  Nixon,  4  How.  467.     And  if  doubts  ^  lb.     And  see  Wms.  Exrs.  1664  and 

arise   as  to  the  genuineness  of  foreign  Perkins's  note. 

claims  to  the  residue,  as  against  domestic  ^  Davis  v.  Estey,  8  Pick.  475;    Mitch- 
distributees    or    the    State    itself,    this  ell   v.    Cox,   22  Ga.   32 ;    Normand   v. 
might  furnish  reason  for  holding  back  Grognard,  14  N.  J.  L.  425. 
the  fund  for  inquiry, 

240 


CHAP.    VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENT.S.      §    1 75 

creditors,  to  the  prejudice  of  creditors  at  the  domicile  ;  but 
what  it  asks  is,  that  the  local  estate  shall,  as  far  as  practi- 
cable, be  so  disposed  of  that  all  creditors  of  the  deceased,  in 
whatever  jurisdiction,  shall  receive  their  proportional  share, 
if  the  estate  be  insufficient  to  pay  them  in  full.' 

Not  only  does  the  place  where  letters  are  locally  granted 
govern  as  to  the  local  grant  of  letters  and  the  rules  for  settle- 
ment of  local  debts,  but  the  accountability  of  an  administra- 
tor for  all  assets  received  in  one  State  or  country,  and  all 
questions  as  to  the  faithful  or  unfaithful  discharge  of  his 
duties  and  his  liability  therefor  are  rightfully  decided  by  the 
laws,  solely,  of  the  State  or  country  where  he  is  appointed.* 

§  175-  I^uty  of  the  Domestic  Representative  as  to  Foreign 
Assets.  — The  earlier  rule  frequently  asserted  in  England  in 
one  loose  form  or  another,  is  that  assets  in  any  part  of  the 
world  shall  be  assets  for  which  the  domestic  executor  or 
administrator  is  chargeable ;  the  practical  effect  being  to 
enjoin  upon  the  principal  personal  representative  the  duty 
of  procuring,  so  far  as  foreign  law  and  the  peculiar  circum- 
stances will  permit,  personal  assets  wherever  situated  ;  realiz- 
ing the  bulk  of  the  estate  of  his  decedent  as  best  he  may, 
gathering  in  the  property  as  one  who  represents  the  whole 
fortune,  and  having  gathered  it,  account  to  those  interested 
accordingly.^  Some  of  the  judicial  expressions  on  this  point, 
to  be  sure,  import  too  onerous  a  responsibility  on  the  repre- 
sentative's part ;  and  Mr.  Justice  Story  has  pointed  out  the 
fallacy  of  holding  a  domestic  executor  or  administrator  an- 
swerable for  foreign  property  which  it  is  admitted  that  he 
can  neither  collect  nor  sue  upon,  nor  compel  its  payment  or 
delivery  to  himself  by  virtue  of  his  domestic  appointment;* 

^  lb.  petition  to  a  foreign  jurisdiction  to  have 

2  Partington  v.  Attorney-General,  L.  the  administrator  removed,  see  50  Mich. 

R.  8  H.  L.  100,  119;    Fay  v.  Haven,  3  22. 

Met.  109;    Hooper  z/.  Olmstead,  6  Pick.  ^Touchst.   496;     Wms.    E.xrs.    1661, 

481;    Heydock's  Appeal,  7  N.  II.  496;  1662;   Attorney-General  v.   Dimond,  i 

Lawrence    v.   Elmendorf,  5    Barb.    73;  Cr.  &  Jerv.   157;    Attorney-General  v. 

McGehee   v.  Polk,  24  Ga.  406;    Ken-  Bouwens,  4  M.  &  W.  171,  192. 

nedy  z'.  Kennedy,  8  Ala.  391 ;   Marrion  *  Story  Confl.   Laws,  §   514  (/,  com- 

V.  Titsworth,  18  B.  Mon.  582;   Grant  v.  menting  upon  Dowdale's  Case,  Cro.  Jac, 

Reese,  94  N.  C.  720.     As  t6  a  widow's  55,  6  Co.  47  b. 

241 


§    175  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

foreign  property,  we  may  add,  of  whose  existence,  or  of  the 
grant  of  foreign  administration  for  realizing  it  as  assets,  he 
may  be  quite  unaware. ^ 

And  yet,  to  let  external  assets  knowingly  escape  his  con- 
trol, and  be  lost  to  the  estate,  when  with  reasonable  diligence 
they  might  have  been  procured,  seems  a  plain  dereliction  of 
duty  in  the  principal  or  domiciliary  representative ;  whose 
function,  as  rightly  understood,  is  to  grasp  the  whole  for- 
tune, as  the  decedent  did  during  his  life,  save  so  far  as  the 
obstructive  law  of  foreign  situs  or  the  limitations  of  his  own 
appointment  may  restrain  him.  If,  therefore,  assets  cannot 
be  collected  and  realized  for  the  benefit  of  the  estate,  with- 
out a  foreign  ancillary  appointment,  the  executor  or  admin- 
istrator of  the  decedent's  last  domicile  ought  (so  far  as  may 
be  consistent  with  his  information,  the  means  of  the  estate  at 
his  disposal  and  the  exercise  of  a  sound  discretion),  to  see  that 
foreign  letters  are  taken  out  and  that  those  assets  are  col- 
lected and  realized,  and  the  surplus  transmitted  to  him.  If, 
as  frequently  happens,  the  domestic  representative  may  collect 
and  realize  such  property  in  the  domestic  jurisdiction,  as  by 
selling  negotiable  bonds,  bills,  notes  or  other  securities,  pay- 
able abroad  ;  or  by  delivering  bills  of  lading  or  other  docu- 
ments of  title  (indorsing  or  assigning  by  acts  of  his  own 
which  would  be  recognized  as  conferring  the  substantial  title 
in  such  foreign  jurisdiction),  or  otherwise  by  effectually  trans- 
ferring property  of  a  chattel  nature,  situated  or  payable  else- 
where, which  is  capable,  nevertheless,  of  being  transferred 
by  acts  done  in  the  domestic  jurisdiction,  he  should  be  held 
accountable  for  due  diligence  as  to  such  net  assets.^  And 
so,  too,  if  he  may  enforce  the  demand  against  the  debtor, 
without  resort  to  the  foreign  jurisdiction. ^  If,  however, 
foreign  letters  and  an  ancillary  appointment  at  the  situs  be 

1  Story  Confl.  Laws,   §   514  a,  com-         ^  As  where  the  principal  representa- 

menting  upon  Dowdale's  Case,  Cro.  Jac.  tive  holds  the  evidence  of  the  demand 

55,  6  Co.  47  b.  or  the  document,  of  title,  and  finds  the 

•  2  Attorney-General  v.  Bouwens,  4  M.  debtor  or  his  property  within  the  juris- 

&W.  171,  192,  /f r  Lord  Abinger;   Tre-  diction  of  the  appointment.     Merrill  v. 

cothick  w.  Austin,  4  Mason,  33;    Hutch-  N.   E.   Mut.   Life   Ins.  Co.,    103    Mass. 

ins  V.  State  Bank,  12  Met.  421;   Butler,  245. 
Estate  of,  38  N.  Y.  397. 

242 


CHAP.   VII.]     FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    175 

needful  or  prudent,  in  order  to  make  title,  and  to  collect  and 
realize  such  assets,  the  principal  representative  should  per- 
form the  ancillary  trust  or  have  another  perform  it,  observing 
due  diligence  and  fidelity,  according  as  the  laws  of  the  foreign 
jurisdiction  may  permit  of  such  a  course  ;  and  if,  in  accord- 
ance with  those  foreign  laws,  a  surplus  be  transmitted  to  the 
principal  and  domiciliary  representative,  or  otherwise  trans- 
ferred, so  as  to  be  held  by  him  in  such  capacity  for  payment 
and  distribution,  he  will  become  liable  for  it,  accordingly.^ 

Whether,  then,  the  principal  or  domiciliary  representative 
be  required  pro  forma  or  not,  to  include  in  his  inventory 
assets  which  come  to  his  knowledge,  either  situate  in  the 
State  or  country  of  principal  and  domiciliary  jurisdiction,  or 
out  of  it,  his  liability,  as  to  assets  of  the  latter  sort,  depends 
somewhat  upon  his  means  of  procuring  them,  and  the  fact 
of  an  ancillary  administration  in  the  situs  of  such  assets.^  In 
any  case  he  is  bound  to  take  reasonable  means,  under  the 
circumstances,  for  collecting  and  realizing  the  assets  out  of 
his  jurisdiction  ;  nor  is  his  liability  a  fixed,  absolute  one,  but 
dependent  upon  his  conduct ;  and  it  is  getting  the  foreign 
assets  into  his  active  control  that  makes  a  domestic  represen- 
tative chargeable  as  for  the  property  or  its  proceeds,  rather 
than  upon  the  duty  of  pursuing  and  recovering  such  assets.^ 

If  assets  situated  in  another  jurisdiction  come  into  the 
possession  of  the  executor  or  administrator  in  the  domiciliary 
jurisdiction,  by  a  voluntary  payment  or  delivery  to  him,  with- 
out administration  there,  it  follows  that  he  should  account 
for  them  in  the  domiciliary  jurisdiction  whose  letters  were 
the  recognized  credentials  in  the  case.*  And  it  is  held  in 
several  American  cases,  consistently  with  this  rule,  that,  no 
conflicting    grant    of    authority    appearing,    the    domiciliary 


1  Attorney-General  v.  Dimond,  I  Cr.  363;     Butler,     Estate    of,     38    N.    Y. 

&  Jerv.  370;    Ewin,  In  re,  1 1  Cr.  &  Jerv.  397. 

157;    Wms.  Exrs.   1661;     Jennison    v.  »  See  Wms.  Exrs.  1664,  and  Perkins's 

Hapgood,  10  Pick.  78 ;  Clark  v.  Black-  note.    Young  v.  Kennedy,  95  N.  C.  265. 

ington,  no  Mass.  372;  Stokely's  Estate,  *  Van  Bokkeien  t/.  Cook,  5  Sawyer, 

19  Penn.  St.  476.  C.  C.  587. 

'^See   Schultz   v.   Pulver,   11    Wend. 

243 


§    176  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

appointee  of  another  State  may  take  charge  of  and  control 
personal  property  of  the  deceased  in  the  State  of  its  situs} 

§  I  y6.  Voluntary  Surrender  of  Assets  in  Iiocal  Jurisdiction  to 
Domiciliary  Administrator.  —  The  powers  of  a  representative 
being  referable  to  the  laws  of  the  country  or  State  from 
which  he  derives  his  authority,  a  foreign  executor  or  admin- 
istrator can  only  collect  assets  in  another  jurisdiction  by 
virtue  of  a  legislative  or  sovereign  permission.  Such  legis- 
lative permission  is  accorded  on  various  terms  ;  and  the  terms 
of  such  permission  must  be  complied  with.^  We  have  seen 
that  the  representative  is  usually  confined,  in  suits  for  the 
recovery  of  assets,  to  the  territorial  jurisdiction  of  his  ap- 
pointment, and,  subject  to  an  ancillary  appointment,  to 
procuring  the  residuum,  after  satisfying  the  claims  and  rights 
of  residents  in  the  ancillary  jurisdiction.^  But  may  not  the 
title  and  authority  of  a  foreign  domiciliary  representative 
be  voluntarily  recognized  and  debts  paid  him,  or  other  assets 
voluntarily  surrendered  to  him  there .-'  The  doctrine  of  the 
English  courts  is,  that  such  payment  or  surrender  affords  no 
protection  against  the  claim  of  a  domestic  administrator.*  A 
preference  for  the  English  doctrine  seems  to  be  expressed 
in  Justice  Story's  treatise,  though  he  had  judicially  affirmed 
the  contrary  in  a  circuit  decision.^  The  Supreme  Court  of 
the  United  States,  however,  has  maintained  the  validity 
of  such  payments  or  delivery  of  the  assets,  as  between  dif- 
ferent States,  so  as  to  discharge  the  local  debtor  or  possessor  ; 
and  the  general  current  of  American  authority  supports  this 
doctrine  ;  there  being,  it  is  assumed,  when  such  payment  or 
delivery  was  made,  no  local  administration.^     But  this  rule 

^Vroom  z/.  Van  Horn,  10  Paige,  549;  and  domestic  appointment  would  be  in- 

Parsons  7/.  Lyman,  20N.  Y.  103;  Barnes  appropriate,  he  should  be  permitted  to 

V.  Brashear,  2  B.  Mon.  380;   Denny  v.  procure  or  sue,  as  it  seems,  without  a 

Faulkner,  22  Kan.  89.  local  appointment.     Purple  v.  Whithed, 

2  Harrison  v.  Mahorner,  14  Ala.  843;  49  Vt.  187. 

supra,  §  173.  *  Whart.  Confl.  Laws,  §  626;   supra, 

^  Supra,  §   174.     Wherever  the   title  §  172.     See  Eames  v.  Hacon,  50  L.J. 

to  the  corporeal  thing,  or  incorporeal  Ch.  740. 

right  owned  by  the  decedent,  becomes  ^  Story  Confl.  Laws,  §  515  a;   Treco- 

so  perfected  in  fhe  representative  under  thick  v.  Austin,  4  Mason,  16. 

the  foreign  administration,  that  a  local  <5  Mackey    v.    Coxe,    18    How.    104  j 

244 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    1 77 

cannot  be  upheld,  to  the  extent  of  violating  the  local  law  of 
the  jurisdiction  where  the  assets  lie  ;  and  each  State  or 
country  has  the  right  to  enlar<;c  or  limit  the  privilege  and 
to  prescribe  the  terms  upon  which  it  shall  be  conceded,  or  to 
deny  it  altogether.^ 

Wherever  the  domiciliary  executor  or  administrator  may 
procure  assets  of  the  deceased  from  the  local  jurisdiction, 
without  being  obstructed  by  local  claimants  upon  the  estate, 
or  by  a  local  executor  or  administrator,  and  without  having  to 
invoke  the  aid  of  the  local  courts,  his  rights  are  favorably 
regarded  in  many  of  the  later  decisions.  For,  if  local  claims 
are  satisfied  out  of  the  estate,  the  local  sovereignty  can  rarely 
complain. 

§  177-  Liability  of  Representative  in  Domestic  Jurisdiction 
for  Acts  done  Abroad. — How  far  executors  or  administrators 
are  liable  in  a  domestic  jurisdiction  for  acts  done  abroad,  does 
not  appear  clearly  settled  ;  and  different  States  or  coun- 
tries may  be  expected  to  uphold  their  own  legislative  policy 
in  preference  to  external  systems.  Beyond  what  has  been 
already  stated  as  to  holding  a  domestic  representative 
responsible  for  assets  received  from  abroad,  and  requiring 
a  principal  representative  to  pursue  assets  in  an  ancillary 
jurisdiction,  it  would  appear  that  a  legal  liability  upon  one's 
domestic    statutory   bond    should    be    construed    somewhat 

Hutchins  v.  State  Bank,  12  Met.  425;  debtor  resides."     Mr.  Justice    Gray   In 

Wilkins  v.  Eilett,  9  Wall.  741 ;    Parsons  Wilkins  v.  Ellett,  ib.,  supra,  %  173. 

V.  Lyman,  20  N.  Y.  103;    Abbott  z/.  Mil-  ^  Ib.      Perhaps  this  doctrine    of  vol- 

ler,  ID   Mo.    141 ;    Whart.   Conti.   Laws,  untary  recognition    is   especially   to   be 

§  626;    Hatchett  v.  Berney,  65  Ala.  39,  favored  where  payment  or  delivery  was 

per  Brickell,  C.  J.;    Citizens'  Bank  v.  made  to  the  domiciliary  executor  under 

Sharp,  53   Md.   521 ;    Wilkins  v.  Ellett,  a  probated  will.     .See    Shaw,   C.  J.,   in 

108  U.  S.  256,  258.    "  If  a  debtor,  resid-  Pond  v.  Makepeace,  2  Met.  114.     Where 

ing    in    another    State,   comes   into   the  a    debtor    makes    payment  of  a  naked 

State    in    which    the    administrator  has  debt  to   the  principal   administrator   of 

been  appointed,  and  there  pays  him,  the  his   foreign   creditor,   he   may   be   com- 

payment  is  a  valid  discharge  everywhere,  pelled  to  pay    it    again   to    a  domestic 

If  the  debtor  being  in  that  State  is  there  representative   subsequently  appointed, 

sued  by  the  administrator,  and  judgment  and  suing  for    it    in    the  debtor's   own 

recovered  against  him,  the  administrator  jurisdiction.    Young  v.  O'Neal,  3  Sneed. 

may  bring  suit  in  his  own  name  upon  55.     Cf.  Mackey  v.  Coxe,  supra. 
that  judgment  in    the  State  where  the 

245 


§    1/8  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

Strictly  with  reference  to  the  statute  in  question.^  But  one 
may  be  charged  in  equity,  as  trustee,  for  the  misapplication 
of  funds  received  from  abroad.  And  in  some  States  it  is 
held  that,  if  foreign  executors  or  administrators  come  within 
the  jurisdictional  limits  of  the  State,  they  are  liable  to  be 
held  by  creditors  or  to  be  brought  to  account  by  legatees 
or  distributees  ;  '^  while  in  other  States  the  rule  appears  to 
be,  that  the  representative  cannot  be  sued  elsewhere,  even 
on  a  judgment  rendered  against  him  in  the  State  of  his 
appointment,  or,  at  all  events,  if  charged  in  his  representa- 
tive character,  and  not  de  bonis  pfopriis? 

§  178.  Permitting  Foreign  Creditors  to  sue  in  the  Local  Juris- 
diction. —  Upon  reciprocal  terms,  foreign  creditors  are  some- 
times permitted  to  come  into  the  domestic  jurisdiction  and 
prosecute  their  claims  against  the  local  assets  ;  not,  however, 
in  such  a  way  as  to  gain  an  advantage  over  domestic  cred- 
itors ;  and,  in  general,  they  may  fairly  be  required  to  exhaust 
the  foreign  assets  before  attempting  to  have  domestic  assets 
subjected  to  their  claims.* 

But  a  judgment  against  one,  in  his  character  of  executor 
or  administrator,  is  not  usually  entitled  to  operate  in  another 
State  with  greater  extent  or  force  than  in  the  State  where 
it  was  recovered."  And  where  a  demand  against  the  estate 
of  a  deceased  non-resident  is  barred  by  the  laws  of  the 
State  where  he  was  domiciled  at  the  time  of  his  death,  it  is 
equally  barred  in  another  State.^ 

The  attempt  of  a  domiciliary  creditor,  who  cannot  prose- 
cute his  claim  in  the  jurisdiction  of  last  domicile,  to  enforce 
that  claim  upon  assets,  by  procuring  letters  in  another  juris- 
diction, is  not  to  be  countenanced  ;  and  letters  procured  by 

^  Cabanne  v.  Skinker,  56  Mo.  357.  Wms.  Exrs.  362,  note  by  Perkins.     Ex- 

2  Johnson   v.  Jackson,   55    Ga.  326;  ecutors  cannot  be  called  to  account  in  a 

Swearingen    v.    Pendleton,  4    S.    &  R.  State    wherein   the    will    has   not   been 

389;   Gulick    V.  Gulick,    33    Barb.    92.  proved.     Cocks  z/.  Varney,  42  N.  J.  Eq. 

See  this  subject  discussed  with  conflict-  514. 

ing  citations.     Story  Confl.  Laws,  §  514,  *  Fellows    v.    Lewis,    65    Ala.    343; 

b;    Wms.  Exrs.  362,  1929,  and  Perkins's  Morton  7/.  Hatch,  54  Mo.  408. 

notes.  5  Coates  v.  Mackey,  56  Md.  416. 

8  Pond  V.  Makepeace,    2  Met.    11-4;  ^  Wernse  w.  Hall,  loi  111.  423. 

Willard  v.  Hammond,  2i   N.  IL  382; 

246 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    I /C) 

him,  on  the  allegation  that  he  is  a  creditor,  arc  improperly 
obtained.^ 

§  1 79.  Principal  and  Ancillary  Jurisdictions,  hoAv  far  Inde- 
pendent of  One  Another.  —  It  is  held,  in  the  Supreme  Court  of 
the  United  States,  that  different  executors  of  the  same  tes- 
tator, appointed  by  his  will  in  different  States,  are  in  privity 
with  each  other,  and  bear  the  same  responsibility  to  cred- 
itors of  the  testator  as  if  there  were  only  one  executor  ;  and 
hence,  that  a  judgment  against  the  executors  in  one  State 
is  evidence  against  those  in  another  State.^  But  as  to 
administrators,  whose  appointments  are  necessarily  derived 
from  different  sovereign  jurisdictions,  there  is  no  such  priv- 
ity ;  and,  according  to  the  universal  American  rule,  where 
uncontrolled  by  local  statute,  so  independent  are  different 
ancillary  administrations  of  the  principal  administration  and 
of  each  other,  whether  in  case  of  testacy  or  intestacy,  that 
property  and  assets  received  in  the  one  forum  cannot  be 
sued  for  nor  its  application  compelled  in  another,  nor  can  a 
judgment  obtained  in  one  such  jurisdiction  furnish  conclu- 
sive cause  of  action  in  another.^ 


1  Wernse  v.  Hall,  loi  111.  423.  If  ^  ^j  justice  Wayne  in  Hill  c.  Tucker, 
the  circumstances  of  a  case  are  such  as  supra;  Harvey  v.  Richards,  i  Mason, 
would  make  it  the  duty  of  one  domestic  415,  per  Mr.  Justice  Story;  Taylor  v. 
court  to  restrain  a  party  from  proceed-  Barron,  35  N.  H.  484;  Wms.  Exrs.  363, 
ing  in  another  domestic  court,  they  will  and  Perkins's  it.  ;  King  v.  Clarke,  2 
also  warrant  it  in  imposing  on  him  a  Hill  (S.  C.)  Ch.  61 1;  2  Kent  Cora. 
similar  restraint  with  regard  to  proceed-  434;  Fay  v.  Haven,  3  Met.  109,  and 
ing  in  a  foreign  court.  But  it  is  held  in  cases  cited;  Hedenherg  f.  Hedenberg, 
England  that  chancery  is  not  warranted,  46  Conn.  30;  Magraw  v.  Irwin,  87 
even  where  an  administration  decree  Penn.  St.  139;  McCord  v.  Thompson, 
has  been  obtained,  to  restrain  a  foreign  92  Ind.  565.  But  as  to  foreign  judg- 
creditor  from  proceeding  in  a  foreign  ment,  see  Barton  v.  Higgins,  41  Md. 
court  against  the  administrator.  Carron  539;  Talmage  z'.  Chapel,  16  Mass.  71. 
Iron  Co.  V.  Maclaren,  5  H.  L.  Cas.  416;  The  possession  of  land  by  the  local  ad- 
Crofton  V.  Crofton,  29  \V.  R.  169.  A  ministrator  for  local  administration  can- 
judgment  obtained,  however,  against  not  be  disturbed  by  the  foreign  and 
the  administrator  by  default  in  such  domiciliary  executor  for  the  purpose  of 
proceedings  would  appear  to  be  only  selling,  until  such  local  debts  and  ad- 
^rjW(^yac«>  evidence  of  the  debt.  Crof-  ministration  charges  are  settled.  Apper- 
ton  V.  Crofton,  29  W.  R.  169.  son  v.  Bolton,  29  Ark.  418;   Sheldon  v. 

2  Hill     V.    Tucker,    13    How.    458;  Rice,  30  Mich.  296. 
Goodall  V.  Tucker,  ib.  469. 

247 


§   l80  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

But  the  forum  of  original  administration  is  the  forum  in 
which  the  final  account  is  to  be  made ;  and  this  forum, 
though  treating  the  allowance  of  probate  accounts  in  the 
ancillary  jurisdiction  as,  for  the  most  part,  conclusive  of  items 
there  so  returned,  sometimes  reviews  independently  funda- 
mental questions  involving  fraud  and  error  in  such  ancillary 
administration,  and  affecting  the  distribution  of  the  estate.^ 

Foreign  executors  and  administrators  cannot  merely  by 
virtue  of  their  ofifices  either  prosecute  or  defend  actions  in 
the  courts  of  other  States  or  countries.^  The  disability 
is,  however,  removed  in  some  instances  by  local  statute;^ 
and  in  others  by  bringing  part  of  the  assets  into  the  juris- 
diction.* And  in  the  cases  where  the  representative  is  not 
permitted  to  sue  as  such,  in  a  foreign  jurisdiction,  it  is  usually 
found  that  the  subject-matter  of  the  suit  is  the  subject  of 
local  administration  within  such  foreign  jurisdiction.^ 

§  1 80.  Responsibility  -where  the  same  Person  is  Principal  and 
Ancillary  Representative.  —  The  want  of  privity  between  dif- 
ferent administrators  in  different  States  has  been  so  much 
insisted  upon  in  this  country,  that  American  authorities  may 
be  found,  apparently  to  the  effect  that  a  person  who  is  admin- 
istrator of  the  same  estate  in  different  States,  and  who  has 
received  assets  under  both  administrations,  cannot  be  com- 
pelled to  account  for  any  such  assets,  except  in  the  place 
where  they  were  received.^  We  apprehend  that  this  is  not 
entirely  accurate,  inasmuch  as  a  point  may  be  reached  where 
the  transfer  of  surplus  assets  from  the  ancillary  to  the  princi- 
pal administrator  may  be  said  to  have  actually  taken  place ; 

1  Clark  V.  Blackington,  lio  Mass.  executor  or  administrator  of  the  domi- 
369;  Ela  V.  Edwards,  13  Allen,  48;  cile  cannot  withdraw  or  dispose  of  the 
Baldwin's  Appeal,  81  Penn.  St.  441.  ancillary  assets,    by    direct    or    indirect 

2  Vaughan  v.  Northup,  15  Pet.  i;  means,  until  the  ancillary  administration 
Noonan  v.  Bradley,  9  Wall.  394;  Story  is  settled,  whether  debts  are  found  in 
Confl.  Laws,  §  513;  Wms.  E.\rs.  1641.  the   ancillary  jurisdiction  or  not.       Du 

*  See  %  post.  Val  v.  Marshall,  30  Ark.  230. 

*  Supra,  §  25.  But  see  Martin  v.  ^  Stacey  v.  Thrasher,  6  How.  44; 
Gage,  17  N.  E.  310.  Aspden  v.  Nixon,  4    How.  467;    com- 

^  Purple   V.   Whithed,   49   Vt.    187;     mented    upon    in    Story   Confl.    Laws, 
Kilpatrick  v.  Bush,  23  Miss.  199.  Where     §  529  b. 
an  ancillary  administration  is  had,  the 

248 


CHAP.   VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    l8l 

and  because,  moreov'cr,  as  we  have  shown,  the  principal  is  so 
far  related  to  the  ancillary  administrator,  meanwhile,  that  a 
certain  duty  exists  of  which  he  cannot  divest  himself,  namely, 
to  hold  the  latter  to  his  trust  of  making  a  transfer  in  con- 
formity with  the  local  law.  And  in  accordance  with  this  lat- 
ter view,  it  is  ruled  that  where  the  administration,  both  at 
home  and  abroad,  has  been  taken  out  by  the  same  person, 
the  presumption  is  that  he  has  done  his  duty  ;  and  when  he 
comes  to  settle  his  account  in  the  State  where  distribution 
is  to  be  made,  he  cannot  deny  that  he  has  received  what  the 
foreign  administrator,  if  he  had  been  a  different  person,  would 
have  been  compelled  to  pay,  and  what  he  would  have  been 
bound  in  duty  to  demand  and  get.^  And  the  rational  rule  is 
that,  the  full  and  final  settlement  being  made  in  the  jurisdic- 
tion of  last  domicile,  the  principal  representative  must  be 
held  to  account  in  the  domiciliary  jurisdiction  for  the  whole 
of  the  personal  property  which  has  come  to  his  hands,  wher- 
ever found,  or  by  whatever  means  collected  ;  so  that  if  he  has 
a  surplus  in  his  hands  arising  out  of  the  administration  else- 
where, after  paying  the  expenses  of  administration  and  dis- 
charging his  own  liabilities  there,  he  becomes  accountable 
for  it  in  the  domiciliary  jurisdiction  in  the  same  manner  as  he 
would  be  if  another  had  been  appointed  administrator  and 
had  paid  over  a  balance.^ 

§  1 8 1 .  Ancillary  or  Local  Representative,  ho-w  far  Responsible 
for  Assets.  —  Since  the  ancillary  or  local  representative  repre- 
sents only  the  assets  of  his  particular  jurisdiction,  he  is  not 
responsible  for  assets  in  other  jurisdictions  ;  nor  in  such 
capacity  alone,  and  independently  of  some  appointment  con- 
ferred in  the  jurisdiction  of  the  decedent's  last  domicile  or 
residence,  does  it  appear  that  he  has  any  right  to  follow  assets 
elsewhere.  His  duty  is  to  apply  the  local  assets  as  the  local 
laws  may  have  determined  ;  paying  local  creditors,  as  such 
laws  usually  direct,  and  remitting  the  surplus  as  the  local 
court  may  order.     But  even  an  ancillary  and  local  adminis- 

'  Black,  C.  J.,  in  Stokely's  Estate,  19         2  Jennison  v.  Hapgood,  10  Pick.  77, 
Penn.  St.  476,  482.     And  see  Baldwin's     100. 
Appeal,  81  Penn.  St.  441. 

249 


5    183  EXECUTORS    AND    ADMINISTRATORS.  [PART    11. 

trator,  who  receives  assets  from  some  jurisdiction  to  which 
his  authority  did  not  exend,  has  no  right  to  pervert  them  to 
his  own  use.^ 

An  ancillary  or  local  administrator  has  no  authority,  under 
the  general  limitations  imposed  by  the  rule  of  comity,  to 
allow  and  pay  claims  of  residents  of  the  State  or  country 
where  the  principal  administration  was  granted,  especially 
where  the  claims  originated  abroad.^ 

§  182.  "Where  different  Executors  are  named  in  a  Will  for  dif- 
ferent Sovereign  Jurisdictions.  —  We  have  seen  that  a  testator 
may  name  one  executor  or  set  of  executors  for  one  State  or 
country,  and  another  for  another -state  or  country.^  And  if, 
in  doing  so,  he  confines  their  duties  to  their  respective  juris- 
dictions, the  case  is  not  one  of  principal  and  auxiliary  ap- 
pointments. The  fact  that  the  executor  of  one  locality  has 
the  same  right  to  control  assets  here  that  the  executor  of 
another  locality  has  to  control  assets  there,  is  hostile  to  the 
supposition  that  the  executor  of  the  last  domicih2  shall  be 
bound  to  charge  himself  with  the  assets  abroad.  The  execu- 
tor of  last  domicile  may  well  demand  that  the  assets  be  sur- 
rendered to  him ;  but  there  his  duty  ends,  provided  he  has 
not  the  means  to  compel  the  surrender  of  such  assets.^ 

§  183.  "Where  the  Principal  Representative  cannot  procure 
Foreign  Assets,  Legatees  or  Distributees  may  pursue.  —  Where, 
by  reason  of  the  law  in  the  jurisdiction  of  foreign  adminis- 
tration, or  otherwise,  it  appears  impracticable  for  the  domes- 
tic representative,  appointed  in  the  decedent's  last  domicile, 
to  procure  the  control  of   the  foreign  assets  or    surplus    of 

^  See  Baldwin's  Appeal,  81  Penn.  St.  tions.     Carr  v.  Lowe,  7  Heisk.  84.    See 

441 ;   Wms.  Exrs.  432;    Fay  v.  Haven,  Cureton  v.  Mills,  13  S.  C.  409. 

3  Met.  109;   Norton  v.  Palmer,  7  Cush.  ^  story  Confl.  Laws,  §§  334,  336,  337; 

523.     Local  statutes   may  be  found  to  2  Kent   Com.   434;     Shegogg   v.  Per- 

modify    these   rules.      In   some    States  kins,  34  Ark.  117,  and  cases  cited    in 

there  is  no  statutory  provision  for  ancil-  the     opinion    of     the    court;     supra, 

lary  administrations   as  a  distinct  spe-  §  15. 

cies;    but  administrations  granted  upon  ^  Supra,  §  42. 

the  estates  of  non-residents  stand  upon  *  Sherman  v.  Page,  85  N.  Y.  123. 
the  same  footing  as  other   administra- 

250 


CHAP.    VII.]      FOREIGN    AND    ANCILLARY    APPOINTMENTS.      §    1 83 

foreign  administration,  it  remains  for  the  legatees,  by  such 
procedure  in  the  foreign  jurisdiction  as  may  be  suitable,  to 
obtain  what  belongs  to  them  ;  and  if  the  name  of  the  domestic 
representative  should  be  needful  in  such  proceedings,  the  use 
of  it  may  be  granted  upon  proper  terms.^ 

1  Sherman  v.  Page,  85  N.  Y.  123,  129. 
251 


§   184  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

CHAPTER   VIII. 

OFFICIATING    WITHOUT    AN    APPOINTMENT. 

§  1 84.  Executor  de  son  Tort  at  Common  Law  defined.  —  Eng- 
lish ecclesiastical  law  has  long  applied  an  official  name  to  an 
unofficial  character;  styling  as  executor  de  son  tort  (or  execu- 
tor of  his  own  wrong)  whoever  should  officiously  intermeddle 
with  the  personal  property  or  affairs  of  a  deceased  person, 
having  received  no  appointment  thereto.  This  designation 
is  not  apt,  since  it  applies  the  term  "executor"  as  well  to 
intestate  as  to  testate  estates,  and  signifies,  moreover,  that  the 
person  who  intruded  his  services  had  no  legal  authority  in 
any  sense.  But  courts  have  not  clearly  discriminated  in  the 
definition. 1  In  several  American  States  the  title  executor 
de  son  tort  is  now  simply  repudiated  ;  ^  and  yet  one's  exercise 
of  functions  which  properly  pertain  to  administration  without 
proper  credentials,  may,  by  whatever  name  we  call  it,  be 
brought  to  the  attention  of  legal  tribunals  in  any  age  or 
country. 

1  Wms.  Exrs.  257;   Bennett  v.  Ives,  "the  term  is,  in  the  older  books,  some- 

30    Conn.  329;    Wilson    v.  Hudson,  4  times  applied  to  a  lawful  executor  who 

Harr.   168;    Barron  v.  Burney,  38  Ga.  mal-administers;   as  by  the  Lord  Dyer 

264;   Brown  v.  Durbin,  5  J.  J.   Marsh,  in  Stokes  v.  Porter,  Dyer,  167  a."     All 

170;     White    V.    Mann,    26    Me.    361;  this    might    seem    to  intimate   that  the 

Leach    v.    Pittsburg,    15    N.    H.    137;  stigma  was  originally  applied  with  exclu- 

Emery  v.  Berry,  8  Fost.  473;   Scoville  sive  regard  to  estates  where  the  deceased 

V.  Post,  3  Edw.   (N.  Y.)    203;    Hubble  person  had  left  a  will.     But  the  modern 

V.  Fogartie,  3  Rich.  413.     Williams  ob-  cases  above  cited  make  it  clear  that  the 

serves  (Wms.  Exrs.  7th  ed.  257,  «.)  that  significance  of   executor   de  son  tort  is 

the  definition  of  an  executor  de  son  tort  not  so  confined  in  modern  practice;   for 

by    Swinburne,  Godolphin,   and  Went-  the  rule  now  is  that  a  party  intermed- 

worth,  is  in  the  same  words;  viz. :  "  He  dling  with  the  estate  of  a  deceased  per- 

who  takes  upon    himself  the    office  of  son,  and  doing  acts  which  an  executor 

executor  by  intrusion,  not  being  so  con-  or    administrator    alone    may    do,    will 

stituted  by  the  deceased,  nor,  for  want  make  himself  liable  as  executor  de  son 

of  such  constitution,  substituted  by  the  tort. 

[ecclesiastical]    court    to    administer."         ^  pidd  v.  Gibson,  20   Hun    (N.  Y.) 

Swinb.  pt.  4,  §  23,  pi.    I;    Godolph.  pt.  274;     Fox   v.   Van    Norman,    li    Kan. 

2,  c.  8,  §  I ;  Wentw.  Off.  Ex.  c.   14,  p.  214;    Ansley   v.   Baker,   14  Tex.  607* 

320,  14th  ed.     "But,"  adds  Williams,  Barasien  v.  Odum,  17  Ark.  122. 

252 


CHAP.   VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.     §    1 85 

§  185.  Vzirioua  Ciroumstances  under  -which  one  may  act  •with- 
out having  been  qualified.  —  It  is  obvious  that  one  who  per- 
forms acts  which  only  a  qualified  executor  or  administrator 
could  have  properly  performed,  may  act  either  as  a  wrong- 
doer, utterly  without  authority,  or  instead,  in  perfect  good 
faith,  as  having  a  colorable  right  and  perhaps  expecting  the 
appointment  ;  that  the  acts  performed  may  be  injurious  to 
the  estate,  and  obstructive  of  those  lawfully  entitled  to  its 
control,  on  the  one  hand,  or,  on  the  other,  beneficial  and 
fairly  designed  for  its  protection  pending  the  selection  and 
qualification  of  a  legal  representative.  While,  moreover, 
some  person  who,  as  conditions  develope,  cannot  receive  pro- 
bate credentials  from  the  court,  may,  under  one  or  another 
of  such  aspects,  occupy  a  certain  unofficial  relation  towards 
the  estate  of  the  deceased,  the  suitable  executor  named  in 
the  last  will,  or,  if  there  be  no  will,  the  surviving  husband, 
widow,  or  next  of  kin  qualified  to  administer  may,  and  almost 
of  necessity  must,  before  qualification,  perform  certain  acts 
when  death  stops  short  the  machinery  of  an  individual's 
affairs  ;  acts  which  of  themselves  cannot  be  regarded  per- 
haps as  authorized  in  advance  by  any  tribunal,  and  yet  are 
appropriate  to  the  emergency ;  acts  which  letters  subse- 
quently granted  should  suffice  to  protect.  Besides  this,  there 
are  certain  duties  connected  with  supervising  the  funeral  and 
burial,  and  involving  expense  to  the  estate,  which  may  fitly 
devolve  upon  one's  immediate  relatives,  rather  than  upon  any 
executor  or  administrator  at  all,  and  which  are  usually  per- 
formed, in  fact,  before  any  examination  of  the  papers  of  the 
deceased  serves  to  disclose  what  last  will,  if  any,  was  left 
behind,  how  large  was  the  estate,  or  who  shall  rightfully  settle 
the  affairs  of  the  deceased. 

According  to  the  different  aspects  above  suggested,  our 
modern  law  pronounces  differently,  as  it  would  seem,  upon 
acts  performed  with  reference  to  the  estate  of  a  deceased 
person  by  one  who  at  the  time  had  not  been  legally  ap- 
pointed and  qualified  to  administer.  These  differing  aspects 
we  shall  endeavor  to  consider  apart. 

253 


§    1 86  EXECUTORS    AND    ADMINISTRATORS.  [pART    II. 

§  1 86.  Wrongful  and  Injurious  Dealings  -with  a  Dead  Person's 
Estate;  Executor  de  son  Tort.  —  It  is  the  wrongful  or  tortious 
intcrmcddler,  without  claim  or  the  color  of  a  title,  upon  whom 
sound  authorities  in  law  fasten,  in  effect,  the  liabilities  of  ex- 
ecutor deson  tort,  whether  that  stigma  be  applied  to  the 
intruder  or  not.^  The  old  books  cite,  however,  many  ex- 
amples in  terrorem,  to  show  that  the  slightest  misappropri- 
ation of  the  goods  and  chattels  of  a  deceased  person  will 
constitute  an  executorship  de  son  tort,  unless  one  was  a  real 
executor  or  administrator ;  as,  for  instance,  taking  a  bible  or 
a  bedstead  ;  or  appropriating  goods  to  one's  own  debt  or 
legacy ;  and  even  the  widow  of  the  deceased  came  within 
this  category,  it  was  said,  if  she  milked  the  cows,  or  took 
more  apparel  than  she  was  entitled  to.^  Wherever  one  killed 
the  cattle,  consumed,  wasted,  or  destroyed  goods  and  effects 
of  the  deceased ;  or  sold,  gave  away,  or  loaned  what  belonged 
to  the  dead  person's  estate ;  he  became  an  executor  de  son 
tort.  Living  in  the  house,  and  carrying  on  the  trade  of  the 
deceased,  was  held  an  intermeddling  in  the  same  sense  ;  ^ 
so,  too,  paying  debts  or  charges  on  account  of  the  deceased, 
unless  the  payment  was  made  with  one's  own  money;*  also 
demanding,  collecting,  and  giving  acquittances  for  debts  due 
the  estate  of  the  deceased.^  All  such  dealings  being  tortious 
in  theory,  one's  agent  or  servant  who  meddled  knowingly 
with  the  assets  of  a  deceased  person  might  be  treated  as 
executor  de  son  tort,  as  well  as  his  unqualified  principal  or 
master.^  Creditors,  too,  who  participated  in  the  wrong  col- 
lusively  with  the  widow  or  kindred,  have  been  held  thus  liable.^ 

1  See  Smith  v.  Porter,  35  Me.  287;  interest  of  an  estate  that  it  should  be 
Ward  V.  Bevill,  10  Ala.  197;  Claussen  sold  or  appropriated  at  once,  account 
w.  Lufreuz,  4  Green  (Iowa)  224  ;  Flem-  being  duly  made  afterwards  for  the  pro- 
ings  V.  Jarrat,  i  Esp.  336.  ceeds   to   the   representative    duly    ap- 

2  Wms.  Exrs.    257,  258;     Noy,  69;  pointed. 

Godolph.  pt.  2,  c.  8,  §  4;   Dyer,  166  ^.  »  Hooper  v.  Summersett,  Wight,  16; 

It  seems    absurd    that    the    milking   of  Wms.  Exrs.  259. 

cows  by  a  widow  or  another  having  their  *  Carter  v.  Robbins,  8  Rich.  29. 

custody  should  expose  one  to  the  lia-  ^  Co^olph.  pt.  2,  c.  8,  §   i;    Wms. 

bilities  of  an  executorship  de  son  tort.  Exrs.  259. 

Milking  is  needful  for  the  health  of  such  ^  Sharland  v.  Mildon,  5  Hare,  468  ; 

creatures  ;    and  as  for  so  perishable   a  Turner  v.  Child,  i  Dev.  L.  331. 

commodity  as  milk,  it  is  for   the   best  ''  Mitchell  v.  Kirk,  3  Sneed,  319. 

254 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.       §    1 S^' 

Where  a  person  deceased  gave  his  property  to  the  person 
in  whose  house  he  died,  it  was  held  that  the  donee,  by  receiv- 
ing and  using  the  property,  became  an  executor  dc  son  tort} 
And  generally  one  who  holds  property  of  a  deceased  person 
under  color  of  some  gift  or  value  from  him  in  fraud  of  the 
deceased  person's  creditors,  may  be  sued  in  that  capacity.^ 
So,  too,  a  widow  who  continues,  understandingly,  in  posses- 
sion of  her  deceased  husband's  goods,  and  used  them  as  her 
own.^ 

But  acts  performed  towards  one's  property,  by  virtue  of 
an  agency  whose  revocation  by  death  has  not  been  brought 
home  to  the  agent,  will  not  constitute  an  executorship  de  son 
tort.  As  where  a  man  left  home,  having  placed  money  in 
the  hands  of  his  wife,  who  used  it  in  paying  his  debts  and 
providing  the  needs  of  the  family,  before  she  received  knowl- 
edge that  he  had  died  abroad.^  A  voluntary  conveyance  of 
property,  which  is  disposed  of  during  the  donor's  lifetime, 
cannot  be  made  the  ground  of  a  suit  against  the  donee  as 
executor  de  son  tort ;^  nor  can  transfers,  by  way  of  security  or 
otherwise,  which  were  made  by  the  deceased  during  his  life, 
and  are  unimpeachable  as  in  fraud  of  his  creditors.^  One  who 
takes,  by  purchase  or  otherwise,  property  of  the  deceased, 
shall  not,  unless  in  collusion  with  the  intermeddler,  be 
chargeable  as  executor  de  son  tort,  but  the  intermeddler  shall 
be   charged   alone.'^      In    modern    times,    too,    the  innocent 

^  Gleaton  v.  Lewis,  24  Ga.  209.  Iowa,  451.     And  see  as  to  a  surviving 

2  Edwards  v.  Ilarben,  2  T.  R.  587;  husband,  Phaelon  z/.  Houseal,  2  McCord 

Alexander  v.  Kelso,  57  Tenn.  5  ;  Wms.  Ch.  423. 

Exrs.  261  ;    Allen  v.  Kimball,  15  Me.  ■*  Brown  v.   Benight,   3   Blackf.   39. 

116;  Norfleet  v.  Riddick,  3Dev.  L.  221 ;  See  also  Outlaw  v.  Farmer,  71  N.  C.  31.' 
Tucker    v.    Williams,    Dudley    (S.    C.)  ^  Morrill  7'.  Morrill,  13  Me.  415. 

329  ;  Hopkins  v.  Towns,  4  B.  Mon.  124;  ^  O'Reily  v.  Hendricks,  2  Sm.  &  M. 

Simonton  v.  McLane,  25  Ala.  353.    And  388;    Garner  v.   Lyles,  35   Miss.    176. 

see  43  Eliz.  c.  8,  cited  Wms.  Exrs.  260.  Equity  has  jurisdiction  of  a  bill  by  the 

Cf.   Barnard   v.    Gregory,    3   Dev.    223.  creditor  under  such  circumstances.     lb. 
Fraudulent   transfers  by  the  testate  or  "  Paull   v.   Simpson,  9  Q.   B.   365  ; 

intestate  are  open  to  attack  in  the  due  Wms.  Exrs.  263  ;   Smith  v.  Porter,  35 

course  of  settling  the  estate.     Bowdoin  Me.    287.      One    who   buys    assets   of 

V.  Holland,   10  Cush.    17  ;    Norfleet  v.  the   estate  on  credit  from  an  executor 

Riddick,  3  Dev.  221.  de  son  tort,  may  defend  by  showing  that 

*  Hawkins    v.   Johnson,    4   Blackf.  he  has  paid   a  part  to  the  legally  ap- 

(Ind.)  21;    Madison  v.  Shockley,  41  pointed  representative  and  given  his  note 


§    18/  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

custodian  or  bailee  is  sheltered  by  the  law  ;  thus,  one  who 
holds  the  goods  of  a  deceased  person,  under  some  colorable 
claim,  as  that  of  a  lien,  or  by  reason  of  some  mistake,  has 
been  pronounced  no  executor  de  son  tort  at  all ;  ^  and  where 
one  happens  to  be  left  in  charge  of  a  dead  person's  goods  (as 
in  case  the  death  occurred  at  his  house),  he  may  keep  them 
until  he  can  lawfully  discharge  himself,  without  incurring  the 
responsibilities  of  such  an  executorship.^  One  may,  under 
the  circumstances  presented,  become  the  temporary  bailee  of 
a  dead  man's  goods,  to  carry  them  home,  with  powers  and 
responsibilities  regulated  accordingly.^ 

§  187.    Executorship   de    son   Tort;     Legal    Consequences. — 

The  legal  consequence  of  becoming  what  was  styled  an 
executor  de  son  tort,  was  to  render  one's  self  liable,  not  only 
to  an  action  by  the  rightful  executor  or  administrator,  but  also, 
so  as  to  be  sued  as  executor  by  a  creditor  of  the  deceased,  or 
by  a  legatee;*  for,  as  Lord  Cottenham  observes,  an  executor 
de  son  tort  has  all  the  liabilities,  though  none  o£  the  privi- 
leges, that  belong  to  the  character  of  executor.^  By  the 
intermeddling  of  such  a  party,  it  was  considered  that  credi- 
tors had  been  aggrieved.  Of  his  liability  to  the  rightful 
executor  or  administrator  we  shall  speak  presently ;  this 
liability  to  the  creditor  or  legatee  deserving  our  previous 
attention,  as  something  quite  abnormal,  and  exposing  the 
intermeddler  to  penalties  by  no  means  apportioned  to  his 
particular  offence. 

Why  a  person  who  thus  acts  should  be  suable  by  third 
parties,  as  an  executor,  is,  so  the  older  text-writers  affirm, 
because  strangers  may  naturally  conclude  from  such  con- 
duct that  he  has  a  will  of  the  deceased  which  he  has  not  yet 

to  him  for  the  balance.     Rockwell  v.  who  in  good  faith  sells  as  the  widow's 

Young,  6d  Md.  563.  agent  perishable  property,  and  accounts 

1  Flemings    v.   Jarrat,    I    Esp.    336;  for  the  proceeds,  is  not  liable  to  the  ad- 
Wms.  Exrs.  263.    And  this  even  though  ministrator  afterwards  appointed.     Per- 
one's  claim  of  lien  may  not  be  positively  kins  v.  Ladd,  1 14  Mass.  420. 
established.  ^  Wms.  Exrs.  265 ;   Bac.  Abr.  Execn- 

2  Godolph.  pt.  2,  c.  8;   Wms.   Exrs.  tors,  B,  3. 

263.  ^Carmichael  v.  Carmichael,   i    Phi  11. 

3  Graves  v.   Page,    17    Mo.    91.    One     Ch.  103. 

256 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.      §    187 

proved.^  Yet  such  a  supposition  must,  in  many  cases,  be 
purely  imaginary ;  the  party  who  sued  knowing  perfectly 
well,  all  the  time,  that  the  intermeddling  was  wrongful,  or 
done  for  some  other  and  inconsistent  purpose.  Upon  such  a 
fiction,  however,  the  pleadings  are  conducted.  If  the  person 
sued  as  executor  de  son  tort  should  plead  nc  unqiies  cxcctctor, 
and  the  creditor  suing  him  joined  issue,  the  judgment  on 
proof  of  acts  such  as  constitute  in  law  an  executorship 
dc  son  tort  would  be  that  the  plaintiff  recover  the  debt 
and  costs,  to  be  levied  out  of  the  assets  of  the  testator,  if 
the  defendant  have  so  much  ;  but  if  not,  then  out  of  the 
defendant's  own  goods.^  And  all  this  heavy  responsibility 
incurred  in  law,  to  creditors,  because  of  giving  away  the  dog 
or  bedstead  of  the  deceased  debtor  ;  a  penalty  out  of  all  pro- 
portion to  the  character  of  the  offence,  and  with  so  little 
exercise  of  real  discrimination,  that  the  gross  intermeddler 
might  fare  better  than  a  custodian  who  had  thoughtlessly, 
and  not  wilfully,  disposed  of  what  was  likely  to  spoil  before 
a  lawful  representative  could  intervene.-^  While,  however, 
by  sincerely  denying  that  he  was  an  executor,  the  incautious 
intermeddler  might  thus  fall  upon  the  thorns,  it  was  open  to 
him  to  escape  the  worst  by  taking  the  humor  of  the  fiction, 
and  alleging  on  his  own  part  plene  admi7tistravit ;  under 
which  plea  he  was  only  chargeable  for  the  assets  which  had 
actually  come  to  his  hands,  and  might  relieve  himself  by 
showing  payments  made  to  other  creditors  of  equal  or  supe- 
rior degree,  so  as  to  have  exhausted  such  assets,  or  a 
delivery  of  assets  to  the   rightful  executor  or  administrator 

'  2  Bl.  Com.    507,  508;    Wms.    Exrs.  appear,  however,  to  be  wanting.     Wms. 

265.  Exrs.  266. 

2  Wms.  Exrs.  266;  Cro.  Jac.  648.  The   English  principles   of  pleading, 

8  In  Robinson  v.  Bell,  2  Vern.  147,  it  where  one  is  sued  by  creditors  as  execu- 

is  intimated  that  in   cases  of  gross  dis-  tor  de  son  tort,  are  recognized  in  some 

proportion  of  this  levy  to  the  property  American    cases,  —  mostly    early    ones. 

meddled   with,   equity   will    relieve    the  See   Campbell   v.    Booth,    7    Cow.    64; 

executor    de   son   tort ;    as    where   the  Hubble  v.  Fogartie,  i  Hill  (S.  C.)    167. 

widow  of  an  ale-house  keeper  is  thus  The  doctrine  is  considerably  upheld  in 

sued  for  debts  of  the  intestate  on  proof  North    Carolina.      Morrison    v.    Smith, 

merely   that  she  had  taken  money  for  a  Busb.  L.  399;    Bailey  v.   Miller,   5   Ire. 

few  pots  of  ale  sold  in   the  house  after  444.     See  Riddle  v.  Hill,   51   Ala.  224; 

her    husband's  death.     Modern   piece-  Ellis  v.  McGee,  63  Miss.  168. 

dents  decidedly  favorable  on  this  point 

257 


§    1 88  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

before  action  brought.^  And  by  pleading  both  ne  tinques 
executor  and  plene  administravit,  absurdly  inconsistent  as 
such  pleas  must  have  been,  the  intermcddler  had  a  double 
means  of  escaping  the  perilous  consequences  of  the  creditor's 
suit. 2 

§  1 88.  Effect  of  Wrongful  and  Injurious  Dealings,  aside  from 
the  Theory  of  Executorship  de  son  Tort.  —  Aside  from  all  fictions 
of  an  executorship  de  son  tort,  the  rational  consequence  of 
acting  without  authority  in  an  estate  must  be,  that  the  acts 
shall  be  judicially  treated  with  reference  to  their  injurious  or 
beneficial  character  to  the  estate,  as  also  to  the  situation  and 
motives  of  the  person  whose  conduct  toward  it  is  considered. 
The  common-law  pleadings,  if  carefully  pursued,  were  not 
unfavorable  to  such  a  discrimination  ;  and  such  a  discrimi- 
nation does  a  man  of  sense,  unread  in  the  law,  draw  when 
left,  as  any  one  may  be,  with  assets  of  a  dead  person  in  his 
custody,  which  no  one  else  for  the  moment  has  any  legal 
right  to  demand  of  him.  That  he  should  be  specially  charged, 
and  that  to  the  extent  of  having  to  respond  to  creditors  as 
well  as  to  the  lawful  representative ;  that  he  should  be  stig- 
matized by  any  such  title  as  executor  de  son  tort,  unless  he 
had  injuriously  intermeddled  ;  that  the  test  should  be,  not 
whether  he  has  dealt  with  prudent  regard  to  the  interests  of 
others  under  the  circumstances,  but  whether  he  has  assumed 
official  functions  ;  is  not  likely  to  occur  to  him.  And,  accord- 
ingly, do  we  find  the  legislative  policy  of  modern  times  tend- 


^  Wms.  Exrs.  267;    i  Salk.  313.     But  retained  the  property  for  his  own  debt; 

payment  made,  afier  action  brought,  to  not  even  the  rightful  executor's  or  ad- 

the  rightful  administrator  is  not  a  good  ministrator's    assent    will    give    such    a 

plea  to  the  creditor's  action.     Curtis  v.  plea   validity.      See    Wnis.    Exrs.    269; 

Vernon,  3T.  R.  587;  2  II.  Bl.  18;  Mor-  Cro.  Eliz.  630;  Yelv.  137;   Bull.  N.  P. 

rison  v.  Smith,  Busb.  L.  399.     Yet  it  is  143;    Curtis  v.  Vernon,  2  T.    R.    587. 

held  that  after  action  brought  he  may  The  impolicy  of  allowing  such  a  defence 

apply  the  assets  in  his  hands  to  the  pay-  is  the  reason  given  for  refusing  it  admis- 

ment  of  a  superior  debt,  and  plead  ac-  sion.     Though  it  is   otherwise   if,  /<•«- 

cordingly.     Oxenham  v.  Clapp,  2  B.  &  denie  lite,  he  procures   letters  from  the 

Ad.  309.  court;    for  this  appears  to  warrant  the 

2  Hooper  v.   Summersett,   Wight,  20.  inference   that   his   previous   acts    were 

An  executor  de  son  tort  cannot  set  up  in  performed   under    color    of  right.     See 

defence   to  the   creditor's  suit  that  he  Wms.  Exrs.  270 ;   2  Ventr.  180. 

258 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.      §  1 89 

ing  to  reject  this  antiquated  theory  of  executorship  dc  son 
tort,  and  defining  one's  liability,  under  circumstances  like 
these,  by  rules  more  consonant  to  reason  and  justice.  For, 
otherwise,  it  might  be  said  that  the  common  law  preferred 
that  the  personalty  of  a  deceased  person  should  go  to  waste 
rather  than  let  any  one  without  regular  authority  take  the  re- 
sponsibility of  protecting  it  at  a  critical  moment,  even  though 
that  possession  and  responsibility  had  been  thrust  upon  him 
without  his  agency.  The  acts,  moreover,  of  one  having  the 
color  of  a  title  or  a  claim  to  administration,  and  like  a  widow, 
next  of  kin,  legatee,  or  creditor,  directly  interested  in  pre- 
serving the  estate,  are,  if  so  performed  that  the  rightful 
allowance,  share,  legacy,  or  debt  of  the  custodian  may  stand 
as  indemnity  for  the  transaction,  treated  with  increasing 
indulgence,  in  contrast  with  those  performed  by  some 
stranger  who  officiously  intrudes. 

§  189.  Modern  Statutes  restrict  the  Liability  of  Intruder  to 
Creditors  and  Strangers.  —  Modern  legislation  is  found,  there- 
fore, to  reduce  very  considerably  this  common-law  liability  of 
the  executor  de  son  tort ;  employing,  perhaps,  the  old  official 
title ;  but  making  such  a  person  liable  to  the  actions  of  cred- 
itors and  other  aggrieved,  if  liable  to  them  at  all,  only  for  the 
property  taken  and  to  the  extent  of  the  actual  damage  cau.sed 
by  his  acts  ;  ^  or,  perhaps,  in  some  definite  penal  sum  based 
upon  the  amount  of  the  estate  taken  by  him.^  Creditors 
cannot  be  considered  aggrieved,  without  regard  to  the  legal 
priorities  observed  among  them,  in  settling  an  estate  ;  nor 


1  McKenrie  v.  Pendleton,  I  Bush,  the  courts  as  such  at  the  time  of  bring- 
164;  Mitchel  V.  Lunt,  4  Mass.  654;  ing  his  action;  and,  if  claiming  to  he  a 
Cook  V.  Sanders,  15  Rich.  63;  Elder  v.  creditor,  the  defendant  may  challenge 
Littler,  15  Iowa,  65;  Hill  v.  Henderson,  his  right  to  be  considered  such  by  set- 
13  Sm.  &  M.  688;  Stockton  v.  Wilson,  ting  up  the  statute  of  limitations,  etc. 
3  Penn.  St.  130;  CoUier  v.  Jones,  86  Brown  v.  Leavitt,  26  N.  H.  493.  See 
Ind.  342.  also   Spaulding  v.   Cook,   48   Vt.    145. 

2  Double  the  amount  of  the  estate  And  see  14  Or.  256.  One  may  be  an 
intermeddled  with  is  fixed  by  a  New  executor  de  son  tort  without  l)ecoming 
Hampshire  statute.  Bellows  v.  Goodal,  subject  to  a  statute  penalty  for  the 
32  N.  H.  97.  A  party  aggrieved  within  offence  of  intermeddling  without  letters. 
this  statute  is  one  who  has  a  status  in  90  N.  C.  553. 


§    190  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

legatees,  apart  from  the  usual  rule  that  the  claims  of  cred- 
itors take  precedence.^ 

S  190.  Liability  of  Intruder  upon  the  Estate  to  the  Rightful 
Executor  or  Administrator.  —  Modern  inclination,  and  that 
particularly  of  American  States,  tends,  moreover,  to  the 
natural  doctrine  of  holding  the  intruder  or  officious  intcr- 
mcddler  liable,  according  to  the  wrongful  character  of  his 
acts,  to  the  rightful  executor  or  administrator  upon  the  estate, 
and  to  him  alone.  Such  a  person  must,  according  to  the 
Massachusetts  statute,  for  instance,  respond  to  the  rightful 
executor  or  administrator  for  the  full  value  of  the  goods  or 
effects  of  the  deceased  taken  by  him,  and  for  all  damages 
caused  by  his  acts  to  the  estate  of  the  deceased  ;  and  he 
shall  not  be  allowed  to  retain  or  deduct  any  part  of  the  goods 
or  effects,  except  for  such  funeral  expenses,  or  debts  of  the 
deceased,  or  charges,  as  the  rightful  representative  might 
have  been  compelled  to  pay.^  A  purchase  from  an  executor 
de  soji  tort  confers  no  better  title  than  that  of  the  vendor;^ 
subject  to  the  usual  exceptions  in  favor  of  the  bo7id  fide  pur- 
chasers of  negotiable  instruments,  for  valuable  considera- 
tion.* But  the  executor  de  son  tort  is  thus  compelled  to 
account  with  only  the  rightful  personal  representative  ;  and 
that,  according  as  he  may  have  wrongfully  and  injuriously 
intermeddled  with  the  estate,  or  the  reverse.^ 

1  McConnell    v.    McConnell,    94   111.  To  take  a  collectible  note,  and  lose,  by 

295.  negligence,  the  opportunity   to  collect, 

Where  one  died  leaving  no  property  may  render  one  chargeable  to  the  legal 

but  his  wearing  apparel,  and  his  widow  administrator.    Root  v.  Geiger,  97  Mass. 

paid  out  of  her  own  means  the  expense  178. 

of  his  last  sickness  and  burial,  and  gave  -'Carpenter  v.  Going,  20  Ala.  587; 
to  his  brother  a  suit  of  his  clothes  of  Rockwell  v.  Young,  60  Md.  563. 
less  value  than  the  amount  thus  paid  *  As  to  the  rights  ol  ^  bond  fide  pur- 
out  by  her,  it  was  held  that  she  could  chaser  against  all  the  world,  except  the 
not  be  held  liable  to  a  general  creditor  legal  representative,  see  Woolfork  v. 
as  executrix  in  her  own  wrong.  Taylor  Sullivan,  23  Ala.  548. 
V.  Moore,  47  Conn.  278.  And  see  Goff  **  That  some  American  States  ex- 
V.  Cook,  73  Ind.  35 1;  Ferguson  v.  pressly  repudiate  the  theory  of  executor 
Barnes,  58  Ind.  169.  de   son    tort,    while  leaving   those  who 

-Mass.  Gen.  Stats,  c.  94,  §   15.     And  intermeddle  liable  to  the  rightful  repre- 

see   Hill   v.   Henderson,    13  Sm.  &   M.  sentative,  see  Ansley  v.  Baker,  14  Tex. 

688;   Barasien  v.  Odum,  17  Ark.   122.  607,  and  other  cases  cited  supra,  §  184. 

260 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.      §   I9I 

As  a  general  rule,  any  one  who  assumes  to  dispose  of  per- 
sonal property  belonging  to  the  estate  of  a  deceased  person 
may  be  held  responsible  to  the  rightful  personal  representa- 
tive, in  tort,  as  for  a  conversion  of  the  property,  whether 
such  representative  receive  his  appointment  before  or  after 
the  conversion.^  If  thus  sued,  one  may  show,  in  mitigation 
of  damages,  payments  made  by  him  such  as  the  lawful  execu- 
tor or  administrator  would  have  been  bound  to  make,  though 
nothing  beyond.^  But,  while  the  act  of  the  intruder  is  itself 
tortious,  as  in  selling,  for  instance,  it  may,  nevertheless,  be 
advantageous  to  the  executor  or  administrator  to  waive  the 
tort,  and  bring  assumpsit  for  the  proceeds  ;  which  he  may 
accordingly  do  ;  and  even  for  the  tort  the  damages  recover- 
able may  be  merely  nominal.^ 

§  191.    Intermeddling    -with    Lands    of     the    Deceased.  —  No 

intermeddling  with  the  lands  of  the  deceased  will  charge  a 


^  Manwell  v.  Briggs,  1 7  Vt.  1 76 ; 
Wms.  Exrs.  270.  And  so,  where  the 
intruder  was  a  wife  whose  husband  is 
liable  for  her  acts  as  at  the  common 
law.     Shaw  v.  Hallihan,  46  Vt.  389. 

2Tobey  v  Miller,  54  Me.  480 ;  Rea- 
gan V.  Long,  21  Ind.  264;  Saam  v. 
Saam,  4  Watts,  432;  Wms.  Exrs.  270, 
271,  and  cases  cited;  Dorsett  v.  Frith, 
25  Ga.  537;  Weeks  v.  Gibbs,  9  Mass. 
74;  McMeekin  v.  Hynes,  80  Ky.  343. 
Application  of  assets  to  debts  should 
be  in  due  order  of  preference.  Gay  v. 
Lemle,  32  Miss.  309.  Whether,  when 
sued  in  trover,  one  can  show  payment 
of  debts  to  the  value  of  goods  not  sold 
but  still  in  his  custody,  see  Wms.  Exrs. 
270,  &  «.;  Mountford  v.  Gibson,  4 
East,  447;  Woolley  v.  Clark,  5  B.  & 
Aid.  744;  Hardy  v.  Thomas,  23  Miss. 
544.  Upon  the  subject  of  recouping 
damages,  local  rules  of  practice  in  cor- 
responding cases  must  be  considered, 
and  general  works  like  that  of  Sedgwick 
on  that  subject.  For  similar  limitations 
under  statute  provision,  see,  e.g.,  Mass. 
Gen.  Stats,  c.  94,  §  15,  cited  supra.     It 

26 


is  to  be  understood  that  the  right  to 
recoup  debts  paid  is  affected  by  the 
solvency  or  insolvency  of  the  estate. 
Mountford  v.  Gibson,  4  East,  453 ; 
Wms.  Exrs.  271;  Neal  v.  Baker,  2 
N.  H.  477.  It  is  recently  held  in  Ala- 
bama, however,  that  one  who  has  re- 
ceived and  used  assets  of  an  intestate 
under  circumstances  constituting  him 
an  executor  de  son  tort,  may  show,  when 
called  to  account  in  equity  by  the  right- 
ful representative,  that  there  are  no  out- 
standing debts,  and  that  he  has  applied 
the  assets  for  the  use  and  benefit  of  the 
distributees,  as  they  must  have  been 
applied  in  due  course  of  administration. 
Brown  v.  Walker,  58  .-Ma.  310. 

*  Upchurch  v.  Nosworthy,  15  Ala. 
705;  52  Penn.  St.  370.  A  bill  in  equity 
by  distributees  against  an  intermeddler 
should  make  the  rightful  personal  rep- 
resentative a  party  plaintiff  or  defendant. 
Nease  v.  Capehart,  8  W.  Va.  95. 

See  further,  Ross  v.  Newman,  26 
Tex.  131;  Sellers  7'.  Licht,  21  Penn.  St. 
98;    Rockwell  V.  Young,  60  Md.  563. 


§    193  EXECUTORS    AND    ADMINISTRATORS.  [PART    11, 

person  as  technical  executor  dc  son  tort ;  for  such  inter- 
ference, on  general  principles,  is  a  wrong  done  to  the  heir 
or  devisee.^  And  the  fact,  that  an  executor  dc  son  tort  does 
not  collect  the  effects  and  pay  the  debts,  will  not  justify 
creditors  in  levying  on  the  real  estate  of  the  deceased  ;  for 
the  lands  of  the  deceased  are  in  no  sense  assets  in  the  hands 
of  an  executor  dc  son  tort? 

§  192.  Liability  of  One  w^ho  administers  under  Void  Letters, 
etc.  —  Where  one  takes  out  letters  under  a  void  or  voidable 
grant,  as  executor  or  administrator,  it  is  said,  sometimes, 
that  he  becomes  executor  or  administrator  dc  son  tort? 
That  he  shall  be  held  answerable  for  his  official  acts  commit- 
ted dc  facto,  to  the  same  extent  as  if  he  had  been  rightfully 
appointed,  and  must  make  good  all  losses  occasioned  through 
maladministration,  purging  himself  of  blame,  and  rendering 
due  account,  we  cannot  doubt  ;  but  it  does  not  appear  that 
his  status  is  that  of  the  common-law  executor  de  son  tort, 
necessarily,  under  circumstances  which  impute  to  him  no 
intentional  wrong."* 

§  193.  Beneficial  Dealings  with  a  Dead  Person's  Estate  by 
One  not  appointed.  —  Upon  the  ancient  theory  of  intermed- 
dling, various  acts,  beneficial  in  their  character,  might  be 
performed  without  exposing  one  to  the  perilous  risk  of  an 
executor  dc  so7i  tort ;  though  the  discrimination  made  was  a 
very  cautious  one.  One  might  order  a  funeral  suitable  to 
the  estate  of  the  deceased,  and  defray  the  cost  out  of  such 
estate  or  his  own  private  means  ;  or  supply  the  young  chil- 
dren of  the  deceased  with  necessaries  ;  or  feed  his  cattle,  or 
make  out  an  inventory,  or  lock  up  the  effects  ;  or  move  the 
property  to  some  secure  place ;  or  carry  or  send  it  to  his 
home  and  to  lawful  representatives  ;  and,  in  general,  take  good 

1  Mitchel  V.  Lunt,  4  Mass.  654;  St.  522.  And  see  Damouth  v.  Klock, 
King  V.   Lyman,   i   Root,  104;   Nass  v.     29  Mich.  290;   49  Ala.  137,  586. 

Van  .Swearingen,  7  S.  &  R.  196.  *  See  supra,  c.  6;   Plowd.  82;   Wms. 

2  Parsons,  C.  J.,  in  Mitchel  v.  Lunt,  Exrs.  272.  A  void  administration  fraud- 
4  Mass.  654  (Ga.)  5  S.  E.  629.  ulently  procured  may  render  the  admin- 

*  Bradley  v.  Commonwealth,  31  Penn.     istrator  and  his  sureties  liable.    Williams 

V.  Kiernan,  25  Hun  (N.  Y.)  355- 
262 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT.     §    I93 

care  of  it,  according  to  the  circumstances  and  its  situation.' 
All  these  were  said  to  be  "offices  merely  of  kindness  and 
charity,"^  or,  one  should  say  rather,  beneficial  acts  and 
offices  of  decency  and  prudence,  commendable  though  per- 
formed from  less  exalted  motives.^ 

Legal  and  proper  acts  done  by  an  executor  dc  son  tort, 
moreover,  are  held  good  against  the  true  representative  of 
the  estate,  if  the  latter  would  have  been  bound  to  do  like- 
wise in  the  due  course  of  administration  ;  and  the  fair  sale 
of  goods,  or  payment  of  money  out  of  the  assets  which  the 
executor  de  son  tort  controlled,  in  order  to  discharge  debts 
binding  to  their  full  extent  upon  the  estate  of  the  deceased, 
should  not  be  needlessly  disturbed  by  the  true  representa- 
tive ;  *  or,  at  all  events,  where  the  parties  to  the  transaction 
appear  to  have  acted  in  good  faith,  prudently,  and  honestly.* 
Prudence  is  exacted  not  only  from  administrators  and  execu- 
tors, but  from  custodians  and  other  bailees  ;  and  diligence  to 
keep  the  estate  from  loss  is  not  only  commendable  in  one 
who  has  a  temporary  charge,  but  a  matter  of  duty.^ 

Again,  the  circumstance  that  a  widow  is  left  in  possession 
of  some  goods  of  her  deceased  husband  does  not,  as  modern 
practice  inclines,  justify  a  ready  inference  of  executorship  de 
son  tort  on  her  part,  with  its  penal  obligations ;  especially  if 
young  children  must  be  maintained  by  her ;  '^  nor  should  the 

1  Brown   v.   Sullivan,    22    Ind.    359;  reason  said  is  (Lord  Holt,  i  Ld.  Raym. 

Church,  J.,  in  Bacon  v.  Parker,  12  Conn.  661)  that  the  creditors  are  not  bound  to 

212;  Graves  v.  Page,  17  Mo.  91 ;    Wms.  seek  farther  than  him  who  acts  as  exee- 

Exrs.  262;    Godolph.  pt.  2,  c.  8;    Harri-  utor. 

son  z/.  Rowley,  4  Yes.  216.     Receiving  ^  But   see    Mountford   v.    Gibson,   4 

a  debt  due  the    estate,   for  the  alleged  East,  441,  as  to  solitary  acts  of  wrung, 

purpose  of  providing  the  funeral,  may  Payments   made  in    rightful   course  of 

or  may  not  constitute   one  an  executor  administration,  and  properly  chargeable 

de  son  tort,  according   as   the   assets  so  upon  the  estate,  may,  we  have  seen,  be 

procured  were   reasonably  small  or  un-  set    off   by    the    executor    de   son    tort. 

reasonably  great  for  that  purpose.  Cam-  Supra,  §  190.     See  Peters  t/.  Leader,  47 

den  V.  Fletcher,  4  M.  &  W.  378.     And  L.  J.  Q.  B.  573. 

see  Tavlor  v.  Moore,  47  Conn.  278.  ^  See  Root  v.  Geiger,  97  Mass.  178; 

'^Swinb.    pt.    2,    §    23;     Wms.    Exrs.  Graves   71.    Page,   17   Mo.  91;    Schoul. 

262.  Bailments,  passim. 

8 "  It    is    clear    that    all    lawful    acts  '  Chandler    v.    Davidson,    6    Blackf. 

which  an  txtcxiior  de  son  tort  doth,  are  367;     McCoy   v.   Paine,  68    Ind.  327; 

good."     5  Co.  30  b.  Crashin    v.    Baker,    8    Mo.    437.      See 

*  I  Ld.  Raym.  661 ;   Plowd.  282.   The  Peters  v.  Leader,  47  L.  J.  Q.  B.  573,  a 

263 


§    194  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

act  of  any  other  person  or  public  official,  vested  with  proper 
custody  of  a  dead  person's  estate,  pending  the  appointment 
and  qualification  of  a  legal  representative.  For  this  is  very 
different  from  the  taking  of  custody  by  an  utter  stranger,  to 
the  detriment  of  kindred  and  others  immediately  concerned.^ 
But  for  contracts  made  by  a  third  person  with  some  rela- 
tive or  a  stranger  and  not  with  the  personal  representative, 
and  while  there  was  in  fact  no  personal  representative  of  the 
estate,  the  representative  cannot  after  his  appointment  be 
held  liable  against  his  consent. ^ 

§  194.  Acts  done  by  a  Rightful  Executor  before  qualifying.  — 
It  remains  to  consider  the  effect  of  acts  done  by  the  legal 
representative  before  he  has  been  duly  appointed  and  quali- 
fied. The  old  law  inclined  to  treat  executors  and  adminis- 
trators differently  in  this  respect.  Upon  an  executor,  the 
various  preliminary  acts  which  pertain  to  preserving  the 
personal  estate,  like  a  prudent  bailee,  and  (as  it  might  happen, 
besides)  ordering  the  funeral  and  meeting  other,  emergen- 
cies of  the  situation,  were  thought  to  devolve  most  fitly  ;  for 
courts  of  common  law  and  equity  looked  chiefly  to  the  title 
one  derived  from  the  testator's  own  selection  ;  regarding  pro- 
bate and  qualification  in  the  ecclesiastical  court  as  of  second- 
ary importance.  All  acts  of  this  character  performed  by  an 
executor  were  confirmed  by  his  subsequent  probate  creden- 
tials ;  credentials  which  English  courts  have  pronounced  to 

late  English  case,  where  a  widow,  com-  tort,   technical    wrong   is   not    favored, 

palled  to  vacate  premises,  who  moved  Winn  v.  Slaughter,  5  Heisk.  191. 

some  of  the  furniture  and  sold  the  rest  But  parties  who  have  assumed   with- 

at  auction,  was  held  to  be  no  executrix  out  authority  to  administer  an  estate,  and 

de  son  tort,  she  duly  accounting   to  the  claim   to  have    administered    fully,   are 

administrator  afterwards.     Nor  was  the  estopped,  when  called  upon,  either  in  a 

auctioneer  so  liable.     lb.  probate  court  or  a  court   of  equity,  for 

Under    the    Georgia    code,    if    one  an  accounting,  from  denying  their  repre- 

chargeable  as  executor  de  son  tort  dies,  sentative  character,  or  their  liability  to 

his  administrator  as  such  is  chargeable  account  accordingly.  Damouth  z'.  Klock, 

to  the  same  extent  as  the  intestate;    but  29  Mich.  290. 

by  no  technical  construction   does  the  ^  Taylor  v.  Moore,  47  Conn.  278. 

latter  become  personally  chargeable  be-  "^  Watson,  Re,  19  Q.  B.  D.  234.   Here 

cause    of    his    own    intestate's    wrong,  a  solicitor  did  work  which  he  considered 

Alfriend  v.  Daniel,  48  Ga.  154.     As  to  for  the  benefit  of  the  estate  and  fried  to 

the  effect  of  a  widow's   re-marriage,  in  make  the  administrator  pay  his  bill   of 

making  her  husband  an  executor  de  son  costs  afterward. 

264 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AX    APPOINTMENT.      §    I94 

be  not  the  foundation  but  only  authenticated  evidence  of  the 
executor's  title. -^  More  than  this,  an  executor,  by  sole  virtue 
of  the  authority  which  his  testator  had  conferred  upon  him, 
might  proceed  at  once  to  do  almost  all  the  acts  incident  to 
his  office,  except  to  suc.^  He  might  seize  and  take  any  of 
the  testator's  personalty,  entering  peaceably  for  that  pur|M)se 
into  the  house  of  heir  or  stranger ;  he  might  as  it  was  said, 
collect,  release,  and  compound  debts  due  the  estate;^  he 
might  distrain  for  rent  due  the  testator,  and  enter  upon  his 
terms  for  years  ;  he  might  settle  or  assent  to  the  claims  of 
creditors  and  legatees  upon  the  estate ;  he  might,  at  discre- 
tion, sell,  give  away,  assign,  or  otherwise  transfer  and  dis- 
pose of  the  testator's  goods  and  chattels  ;  and  all  this  before 
probate.*  Although  the  executor  might  die  before  probate 
after  doing  any  of  those  acts,  the  act  itself  stood  firm  and 
good  ;  and,  by  such  death,  the  executorship  was  not  avoided 
but  only  brought,  so  to  speak,  to  an  end.^  If,  however,  what 
the  executor  had  thus  done  before  probate  was  relied  upon 
by  another,  as  the  foundation  of  his  title  or  right,  and  its 
enforcement  sought,  —  as  in  the  case  of  a  transfer  of  certain 
assets  belonging  to  the  estate,  —  it  would  be  necessary  to 
show  a  probate  ;  and  hence,  subsequent  letters  to  this  ex- 


I9   Co.    38   a;     Plowd.   281;     Wms.  for  many  such  cases.     But  where  the 

Exrs.  293,  629;    Woolley  v.  Clark,  5  B.  executor's  suit  is  un  behalf  of  the  estate, 

&  Aid.  745;    2  W.  Bl.  692;    Whitehead  and   in    a    representative    capacity,   the 

V.  Taylor,  10  Ad.  &  E.  210.  letters  must  be  proiiuced.     i  .Salk.  285; 

2  In  order  to  sue,  as  we  shall  see  3  Taunt.  113;  Webb  t/.  Adkins,  14  C.  B. 
hereafter,  letters  of  authority  appropriate  401.  Yet  it  is  held  that,  provided  the 
to  the  jurisdiction  were  generally  need-  credentials  be  produced  in  season,  the 
ful.  See  Dixon  v.  Ramsay,  3  Cranch,  suit  may  be  commenced  before  probate. 
319.  Where  '  an  executor  had  actual  i  Salk.  307;  Wms.  Exrs.  308.  The  lat- 
possession  of  the  personal  property  in  est  English  rule  is,  however,  that  all  pro- 
question,  he  might,  on  general  principle,  ceedings  {e.g.,  in  a  suit  against  bankers 
sue  another  who  had  acquired  it  under  of  the  decedent)  should  be  stayed  until 
a  contract  with  himself,  or,  as  having  probate  is  granted.  Tarn  v.  Commer- 
been  wrongfully  dispossessed  by  a  cial  Bank,  12  Q.  B.  D.  294. 
stranger,  sue  for  the  wrong  done  him  in  '  But  as  to  releasing,  compounding 
trespas-i,  trover,  or  replevin.  For  here  letters,  etc.,  see  c.  c^,  post.  Part  IV. 
actual  possession  makes  a  primA  facie  *  Godolph.  pt.  2,  c.  20 ;  Rex  v.  Stone, 
title  sufficient  to  serve  as  the  founda-  6  T.  R.  298;  Whitehead  v.  Taylor,  10 
tion  of  an  action.  Plowd.  281  ;  Oughton  Ad.  &  E.  2IO;  Wms.  Exrs.  302,  303. 
V.  Seppings,  i  B.  &  .\A.  241 ;  Wms.  ^I  Salk.  309;  Johnson  ?'.  Warwick, 
Exrs.  306,  307.   A  bailee's  title  is  enough  17  C.  B.  516;   Wms.  Exrs.  303,  304. 

265 


§    194  EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 

ecutor,  or,  if  he  died  without  having  obtained  them,  letters 
to  another  with  the  will  annexed,  would  have  to  be  produced.* 
And  so,  correspondingly,  if  enforcement  was  sought  on  be- 
half of  the  estate  against  another,  by  virtue  of  an  arrange- 
ment entered  into  before  probate.^ 

It  is  generally  admitted  in  this  country,  as  in  England,  that 
one's  appointment  as  executor  relates  back  so  as  to  absolve 
him  from  all  personal  liability  for  acts  committed  before  his 
appointment  without  a  strict  probate  sanction  ;  though  this, 
by  fair  inference,  affords  immunity  only  as  to  acts  which 
come  properly  within  the  authority  and  scope  of  a  rightful 
representative.^  American  legislation  departs  so  far,  how- 
ever, from  the  older  theory,  that,  as  we  have  elsewhere  shown, 
no  appointment  as  executor  may  be  safely  deduced  from  the 
will  itself,  even  though  the  rightful  probate  of  that  will  were 
unquestioned ;  for,  as  American  statutes  so  frequently  pro- 
vide, the  will  should  be  presented  speedily  for  probate,  nor 
should  an  executor  designated  therein  act  as  one  having 
genuine  authority,  until  he  has  been  duly  appointed  by  the 
court  and  has  qualified  by  giving  bonds.  Hence,  acts  not  of 
themselves  justifiable  in  the  prudent  interest  of  the  estate, 
pending  one's  full  appointment,  are  not  likely  to  be  upheld  as 
readily  in  this  country  as  in  England ;  and,  if  because  of  his 
death  or  the  proper  refusal  of  the  court  to  appoint  him,  or  his 
failure  to  qualify  as  the  law  directed,  some  one  else  should  be 
appointed  in  his  stead,  his  imprudent  and  officious  dealings 
with  the  estate,  meanwhile,  his  needless  transfers,  and  hasty 
promises,  may  involve  him  and  his  own  estate  in  trouble, 
rather  than  bind  the  estate  which  he  assumed  to  represent.* 

^Johnson  v.  Warwick,  17  C.  B.  516;  ogous  cases  under  the  head  of  adminis- 

Pinney  v.  Pinney,  3  B.  &  C.  335.  tration.  But  the  rightful  executor,  though 

2  Newton  v.  Metropolitan  R.,   i   Dr.  without  official  authority  in  Connecticut, 

&  Sm.  583.  may  lawfully  receive  into  his  possession 

*  Bellinger    v.    Ford.   21    Barb.    311;  here  assets   if  voluntarily  delivered   to 

Brown  V.  Leavitt,  6  Fost.  493;  Stockton  him  ;    and  may  approve  of  payments  in 

V.  Wilson,  3  Penn.  St.  130;    Shirley  v.  some  instances.     Selleck  v.  Rusco,  46 

Healds,  34  N.  H.  407;   Dawes  v.  Boy  Is-  Conn.  370. 

ton,  9  Mass.   337;    Johns  v.  Johns,   i  As   to   the  executor's  title,   the   true 

McCord,  132;  Wiggin  v.  Swett,  6  Met.  theory  appears  to  be  (unless  where  the 

197.  doctrine   of  relation   applies)    that   the 

*  See  next  section  as  furnishing  anal-  personal  estate  of  the  deceased  vests  in 

266 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APPOINTMENT,      §   I95 


§  195.  Acts  done  by  a  Rightful  Administrator  before  qualify- 
ing.—  An  administrator  may,  l)y  relation,  ratify  and  make 
valid  all  acts  wliich  come  within  the  scope  of  a  ri<;htful  ad- 
ministrator's authority;  ^  and  whatever  dealings,  justifial)le  on 
this  principle,  and  in  the  interest  of  the  estate,  he  may  have 
had  with  it  before  his  appointment,  are  cured,  in  modern 
practice,  by  the  grant  of  subsequent  letters.^  The  modern 
tendency,  in  fact,  is  to  look  indulgently  upon  previous  acts 
and  dealings,  not  positively  arbitrary  and  wrongful  on  his 
part,  for  which  he  can  show  a  subsequent  appointment ;  and 
thus  is  lessened  the  force  of  earlier  distinctions  which  availed 
more  strongly  in  an  executor's  favor.  Such  beneficial  acts  as 
have  been  seen  not  to  constitute  one  an  executor  de  son  tort 
are  certainly  protected  by  a  subsequent  appointment  as  admin- 
istrator; and  even  acts  less  justifiable  in  theory,  such  as  sell- 
ing or  pledging  sundry  chattels  of  the  deceased,  have  been 
sustained  on  the  ground  that  the  act  was  beneficial  to  the 
estate,^  or  at  least  such  as  others  had  no  reason  to  complain 
of.*     The  greater  leniency  appears  due  where  the  appointee 


him  before  probate,  as  a  sort  of  trustee 
for  the  creditors,  legatees,  and  whoever 
else  may  be  interested  in  the  estate 
under  the  will.  Clapp  v.  Stoughton, 
10  Pick.  463 ;  Shirley  v.  Healds,  34 
N.  H.  407.  He  is  not  only  sole  trustee 
in  this  sense,  but  the  only  legal  repre- 
sentative of  the  deceased,  and,  as  such, 
the  person  who  should  cause  the  will  to 
be  pioved  ;  and  he  is  aggrieved  by  any 
decree  which  divests  him  of  his  title  in 
the  estate  of  the  deceased,  or  which  dis- 
allows, rejects,  or  refuses  the  probate  of 
the  will.  Wiggin  v.  Swett,  6  Met.  197; 
Shirley  v.  Healds,  34  N.  H.  407;  Brown 
V.  Gibson,  I  Nott  &  M.  326.  All  this, 
we  presume,  is  to  be  said  in  strictness 
only  of  an  executor  who  virtually  ac- 
cepts the  trust  under  the  will,  and  pro- 
ceeds for  probate,  qualification,  etc., 
consistently  with  that  intention;  for,  if 
he  refuses  the  trust,  or  the  will  is  invalid, 
or  he  fails  to  qualify,  the  title  appears 
to  be  practically  in  abeyance  as  in  the 
case  of  administration;  and  anotlier 
title,  such  as  that  of  special  administra- 


tor, must  sometimes  and  for  certain  pur- 
poses intervene. 

Notice  of  the  dishonor  of  a  note  sent 
to  an  executor  before  his  qualification  is 
sufficient.  Shoenberger  t.  Savings  In- 
stitution, 28  Penn.  St.  459. 

1  Alvord  V.  Marsh,  12  Allen,  603; 
Outlaw  V.  Farmer,  71  N.  C.  35. 

2  Bellinger  v.  Ford,  21  Barb.  31 1; 
Emery  v.  Berry,  8  Fost.  473 ;  Shillaber 
V.  Wynian,  15  Mass.  322. 

3  Moore,  126;  i  Salk.  295;  Wms. 
Exrs.  407,  408;  Mountford  v.  Gibson, 
4  East,  446;  Magner  v.  Ryan,  19  Mo. 
196;  Rattoon  v.  Overacker,  8  Johns. 
126;  Priest  V.  Watkins,  2  Hill  (N.  V.) 
225. 

*  Taylor  v.  Moore,  47  Conn.  278. 
Where  one  before  his  appointment  buys 
hay  to  feed  cattle  belonging  to  the 
estate,  he  may  be  sued  for  the  price, 
notwithstanding  credit  was  given  to  the 
estate.  "  Credit  to  the  estate  means,  if 
it  means  anything,  credit  to  the  admin- 
istrator, who,  if  he  makes  a  cash  act  for 
the  benefit  of  the  estate  after  the  intes- 


267 


§    195  F.XFXUTORS    AND    ADMINISTRATORS.  [PART    II. 

had  previously  the  responsibility  of  custodian  of  the  dead 
person's  effects,  and  acted  virtually  in  that  capacity. 

To  an  action  on  a  jud<;ment  obtained  against  an  executor 
de  son  tort,  the  latter  has  been  permitted  to  show  his  subse- 
quent appointment  as  administrator,  and  a  full  settlement  of 
the  estate  as  insolvent  ;^  and  his  promise  before  appointment 
to  pay  a  debt  will  not  prevent  the  bar  of  limitations  to  a  suit 
brought  after  his  appointment  against  him.^  As  a  defendant, 
such  an  administrator,  properly  speaking,  becomes  personally 
answerable  for  his  transactions,  without  the  scope  of  author- 
ity ;^  but  may,  after  his  appointment,  obtain  immunity  on  his 
accounts  for  such  transactions  as  are  proper.* 

According  to  the  old  law,  it  is  true,  executors  and  adminis- 
trators were  differently  treated.^  For  an  administrator's  title, 
being  founded  in  letters  and  on  a  formal  appointment  by  the 
court,  such  officer  had  no  right  of  action,  it  was  said,  until 
he  had  actually  received  his  credentials.^  This  distinction, 
however,  has  become  of  little  consequence  at  the  present 
day,  —  and  especially  in  the  United  States,  —  for  bc^th  execu- 
tors and  administrators  are  required  by  our  probate  law  to 
qualify  before  the  appointment  can  be  considered  as  of  full 
legal  force.  Appointment  and  qualification,  whether  of  exec- 
utor or  administrator,  cause  one's  letters  of  authority,  when 
granted,  to  relate  back  for  most  practical  purposes,  there- 
fore   to  the  time  of  the  death   of  the  testate  or  intestate 


tate's    death,   may  be    personally   sued  ^  WooUey  t/.  Clark,  5  B.  &  Aid.  745; 

thereon."     Tucker  !<.  Whaley,  11   R.  I.  Wms.    Exrs.  629;    9  Co.  38  a,  39  a; 

543.     And  see   Luscomb  v.  Ballard,  5  Whitehead  v.  Taylor,  10  Ad.  &  El.  210; 

Gray,  403.  2  W.   Bl.   692;    Shirley  v.   Healds,  34 

^  Olmsted  v.  Clark,  30  Conn.    108.  N.  H.  407;   Dawes  v.  Boylston,  9  Mass. 

But  not  setnble  to  set  up  his  own  wrong  337;   Johns  v.   Johns,   i    McCord,   132; 

so  as  to  defeat  the  judgment.     Walker  Wiggin  v.  Swett,  6  Met.  197.       The  ex- 

V.  May,  2  Hill  Ch.  22.  ecutor   may  accordingly  release  a  debt 

2  Hazelden  v.  Whitesides,  2  Strobh.  due  to  the   deceased   before   procuring 

353.     See  post,  Pt.  V.  c.  5.  probate.    9  Co.  39  a.     So  he  may  main- 

^  Wms.  Exrs.  405-407;    I   Salk.  295;  tain    trespass,    trover,    etc.,    for    goods 

5  B.  &  Ad.  188;    Parsons  v.  Mayesden,  taken  out  of  his  possession  before  pro- 

I  Freem.  152.  bate  of  the  will.    Com.  Dig.  Exrs.  B,  9; 

*  Mountford  v.  Gibson,  4  East,  446;  supra,  §  194. 

Wms.  Exrs.  407.     As  to  confirming  a  ^  WooUey  v.  Clark,  5  B.  &  Aid.  745; 

sale  after  appointment,  see  also  Hatch  Wms.    Exrs.    630;    5   B.   &    Aid.    204; 

V.  Proctor,  102  Mass.  351.  Pratt  v.  Swaine,  8  B.  &  C.  285. 

268 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AX    APPOIN'TMENT.      §    I95 

whose  estate  is  to  be  settled,  the  title  meanwhile  bein<;  in  a 
sort  of  abeyance.^  Even  the  old  text  writers  on  Mnf^lish 
ecclesiastical  law  admitted  that,  for  particular  purposes,  let- 
ters of  administration  would  relate  back  of  the  date  or  grant 
to  the  time  when  the  intestate  died.  Thus,  an  administrator 
might  bring  trespass  or  trover  for  goods  of  his  intestate  taken 
before  letters  were  granted  him,  the  necessity  of  the  case 
overriding  the  legal  theory  of  a  dispossession  ;  ^  so  might  he 
ratify  a  sale  of  effects  of  the  deceased  made  before  his 
appointment,  and  recover  the  price,^  and  in  various  other 
instances  take  officially  the  benefit  of  contracts  previously 
made  on  account  of  the  estate.*  Furthermore,  on  the  doc- 
trine of  relation,  an  administrator  entitled  to  bring  trover  for 
a  conversion  has  been  permitted  to  waive  the  tort  and  recover 
as  on  a  contract.  And  there  are  various  instances  of  acts 
done  by  an  administrator  before  appointment,  such  as  selling 
and  contracting  charges,  which,  being  prudent  and  reasonable 
in  the  interest  of  the  estate,  have  been  held  valid  ;  for,  though 
the  act  were  that  of  an  executor  de  son  tort,  in  some  such 
instances,  yet  letters  may  relate  back  so  as  to  legalize  even 
technically  tortious  acts;^  and  here  we  are  to  observe  that 
the  peculiar  liability  of  an  executor  de  son  tort  to  creditors, 
to  the  rightful  administrator,  or  to  others  who  may  have 
suffered  by  his  wrongful  acts,  is  not  necessarily  in  question 
when  the  transaction  itself  calls  for  enforcement.^  More- 
over, an  executor  might  commence  an  action  at  law  before 
proving  the  will,  getting  his  appointment  completed  in  sea- 
son for  his  declaration,  while  an  administrator  would  have  to 
get  his  appointment  first ;  and  yet,  in  chancery  suits,  execu- 
tors and  administrators  have  been  treated  on  substantially  an 
equal  footing  in  this   respect."      Modern   statutes,   to  some 

1  Lawrence  v.  Wright,  23  Pick.   128;  ^  Wms.    Exrs.  406,  632;    Welchman 
Alvord  V.  Marsh,  12  Allen,  603;    Bab-  v.  Sturgis,  13  Q.  B.  552;    i  Salk.  295; 
cock  V.   Booth,  2  Hill,   181;    Wells  v.  Hatch  v.  Proctor,  102  Mass.  351. 
Miller,  45  111.  382;  Goodwin  t/.  Milton,  *^  Hatch  v.   Proctor,   102   Mass.   351, 
25  N.  H.  458.  354. 

2  Foster  v.  Bates,  12  M.  &  W.  226,  "  Bateman    v.    Margerison,   6    Hare, 
233;   Wms.  I':xrs.  631.  496;    3  P.   Wms.  351 ;    Wooldridge  v. 

8  Foster  f.  Bates,  12M.  &W.  226,233.     Bishop,  7  B.  &  C.  406;  Wms.  Exrs.  405; 
*  Wms.  Exrs.  632;    Bodger  v.  Arch,     Gatfield  v.  Hanson,  57  How.    (N.  V.) 
10  Ex.  333.  Pr.  331. 

269 


§  19^ 


EXECUTORS    AND    ADMINISTRATORS.  [PART    II. 


extent,  regulate  expressly  the  devolution  of  title  to  personal 
property  where  one  dies  intestate  ;  ^  and  tend  to  put  execu- 
tors and  administrators,  before  the  issuance  of  letters,  upon  a 
corresponding  footing  of  authority.^ 

§  1 96.  "Whether  a  Suitable  Representative  who  has  intermed- 
dled can  be  compelled  to  take  out  Letters.  — ^  In  English  practice, 
agreeably  to  the  theory  that  an  executor's  title  is  mainly 
derived  from  his  testator,  the  person  designated  as  executor 
under  a  will,  who  performs  an  act  of  administration,  cannot 
afterward  refuse  to  probate  the  will  and  accept  the  office. 
He  is  held,  in  other  words,  an  executor  of  right  rather  than 
executor  in  his  own  wrong.^  This  course  seems  incompatible 
with  the  American  doctrine,  which   refers  the  appointment 


»  Thus  the  English  statute  3  &  4  Win. 
IV.  c.  7,  permits  the  administrator  to 
claim  for  the  purposes  of  the  act  as  if 
he  had  obtained  the  estate  without  in- 
terval after  the  death  of  the  deceased. 
By  Stat.  22  &  23  Vict.  c.  95,  §  19,  the 
personal  estate  and  effects  of  any  person 
dying  intestate,  shall  from  his  decease, 
and  until  the  grant  of  administration 
vest  in  the  judge  of  the  court  of  probate 
to  the  same  extent,  etc.,  as  heretofore  in 
the  ordinary.     See  Wms.  Exrs.  635. 

2  By  2  New  York  Rev.  Stat.  71,  §  16, 
the  executor  is  inhibited  from  trans- 
ferring assets  until  letters  are  issued  to 
him;  and  the  statute  applies  notwith- 
standing full  powers  of  sale  are  expressly 
conferred  by  the  will.  Humbert  v. 
Wurster,  22  Hun  (N.  Y.)  405. 

A  person  to  whose  order  money  be- 
longing to  an  estate  was  paid,  before  an 
administrator  was  appointed,  is  account- 
able therefor  to  the  administrator  when 
appointed,  although  the  money  or  its 
avails  never  came  to  his  actual  use. 
Qark  v.  Pishon,  31  Me.  503. 

"  By  the  law  of  this  State,"  observes 
the  court  in  Hatch  v.  Proctor,  102 
Mass.  351,  354,  "the  letters  of  admin- 
istration, by  operation  of  law,  make 
valid  all  acts  of  the  administrator  in 
settlement  of  the  estate  from  the  time 


of  the  death.  They  become  by  relation 
lawful  acts  of  administration  for  which 
he  must  account.  And  this  liability  to 
account  involves  a  validity  in  his  acts 
which  is  a  protection  to  those  who  have 
dealt  with  him."  And  see  Hoar,  J.,  in 
Alvord  V.  Marsh,  12  Allen,  603.  The 
doctrine  of  relation,  however,  appears 
not  here  applicable  so  as  to  constitute 
an  estoppel  as  to  title  against  the  sound 
interests  of  the  estate.  Cooley,  J.,  in 
Gilkey  v.  Hamilton,  22  Mich.  283,  286, 
287,  well  observes  that,  while  this  doc- 
trine is  quite  necessary  to  the  protection 
of  the  interests  of  the  estate,  this  neces- 
sity is  the  reason  upon  which  it  rests, 
and  it  is  no  part  of  its  purpose  to  legal- 
ize lawless  acts  which  may,  and  gener- 
ally would,  work  the  estate  a  prejudice. 
"  Certainly,"  he  adds,  "  there  is  nothing 
in  the  fact  that  a  man  is  appointed 
administrator,  who  has  previously  mis- 
conducted himself,  which  can  justly 
raise  against  the  estate  any  equities,  or 
which  can  justly  deprive  the  creditors 
or  next  of  kin  of  any  of  their  rights  in 
its  assets."  And  see  Morgan  v.  Thomas, 
8  Ex.  308;   Crump  t/.  Williams,  56  Ga. 

590- 
3  Perry,  Goods  of,  2  Curt.  655;  Wm& 

Exrs.  276. 


270 


CHAP.  VIII.]      OFFICIATING    WITHOUT    AN    APrOINTMr.NT.      §    IQJ 

rather  to  one's  qualification  by  proving  the  will,  furnishing 
bonds,  and  satisfying  the  court  that  he  is  suitable  in  fact  for 
the  office  ;  from  which  aspect,  indeed,  one  who  had  acted 
imprudently  and  injuriously  to  the  estate,  before  receiving 
letters,  might  be  deemed  most  unsuitable.  Neither  in  Eng- 
lish nor  American  practice  will  a  widow,  next  of  kin,  or  other 
person  lawfully  entitled  to  take  out  letters  of  administration, 
be  compelled  to  do  so  because  of  having  previously  inter- 
meddled ;  but  some  one  else  may  receive  the  appointment.^ 
On  the  other  hand,  save  so  far  as  injurious  intermeddling 
may  bear  upon  the  issue  of  personal  suitableness  for  the 
trust,  it  appears  to  be  no  objection  to  the  appointment  and 
qualification  of  a  person  as  executor  or  administrator  who 
claims  the  appointment  of  right,  that  he  is  an  executor  de 
son  tort  of  the  estate.'^ 

§  197.  Intermeddling  by  a  Third  Person  after  the  Grant  of 
Letters  Testamentary  or  Administration.  —  After  probate  of  the 
will,  and  the  grant  of  letters  testamentary,  or,  as  the  case 
may  be,  after  the  administrator  has  been  duly  appointed  and 
qualified,  there  is  a  person  legally  authorized  to  take  full  pos- 
session of  the  dead  person's  personal  property.  Whoever 
shall  afterwards  injuriously  intermeddle  with  the  estate 
renders  himself  liable  to  suit  as  a  trespasser.^  Such  inter- 
meddler  is  not  by  technical  construction  an  executor  de  son 
tort ;  but  if  his  interference  be  actually  under  claim  of  an 
office,  he  might  be  thus  charged ;  since,  according  to  the 
better  opinion,  it  seems  not  logically  absurd  that  there  should 
exist  an  executor  of  right  and  an  executor  de  son  tort  at  the 
same  time.*  One  upon  whom  the  character  of  executor  de 
son  tort  fastens,  may  be  sued  as  such,  notwithstanding  the 
legal  representative  qualified  afterwards  and  before  action 
was  brought.^ 


1  Ackerley    v.    Oldham,    i    Phillim.  '  Salk.  313;   Wms.  Exrs.  261. 

248;    Wms.  Exrs.  438.  *  Wms.    Exrs.    261,  and    note,  com- 

2  Carnochan    v.     Abrahams,    T.     P.  meriting  on  Peake,  N.  P.  C.  87,  and  I 
Charlt.   (Ga.)   196;    Bingham  v.  Cren-  Turn.  &  R.  438,  which  bear  f(J«/^rt. 
shaw,  34  Ala.  683.  ^  i  Salk.  313;   Wms.  Exrs.  261. 

271 


PART    III. 

ASSETS   AND   THE   INVENTORY. 


CHAPTER   I. 

ASSETS    OF    AN    ESTATE. 

§  198.  What  comprise  Assets  of  a  Deceased  Person's  Estate  ; 
Personal  contrasted  with  Real  Assets.  —  The  word  "  assets," 
which  may  be  used  in  various  primary  senses,  as  its  French 
derivation  indicates,  our  English  and  American  law  usually 
applies  to  such  property  belonging  to  the  estate  of  a  deceased 
person  as  may  rightfully  be  charged  with  the  obligations 
which  his  executor  or  administrator  is  bound  to  discharge.^ 

In  modern  practice,  and  conformably  to  our  modern  legis- 
lation, all  the  property  of  a  deceased  person,  real,  personal, 
or  mixed,  is  liable  for  his  debts  and  the  usual  charges  inci- 
dental to  death  and  the  settlement  of  his  estate.  But  a 
fundamental  distinction  has  always  been  recognized  between 
the  real  and  personal  estate,  in  the  application  of  this  rule ; 
for  the  personal  estate  left  by  the  deceased  constitutes  the 
primary  fund  for  all  purposes  of  administration  ;  his  real  estate 
as  a  secondary  fund  not  being  available  for  assets  until  the 
personalty  has  been  exhausted,  leaving  obligations  still  un- 
discharged ;  nor  available  at  all  without  proceedings  which 
courts  of  equity  pursue  with  strict  care  and  even  reluctantly. 
Personalty  vests  immediately  in  the  executor  or  administra- 
tor for  the  purposes  of  his  trust  ;  but  real  estate  (subject  to 

1  The  word  "  assets,"  from  the  French  The   older   writers    sometimes    applied 

assez,  is  here  used  to  denote  property  to  this  portion  of  the  estate  the  term 

"sufficient"  to    make   a   representative  "assets  enter  mains"  in    conlradistinc- 

chargeable   to    creditors   and    legatees,  tion  to  "  assets  per  descent,"  by  which 

or  parties  in  distribution,  so  far  as  that  latter    expression   was    designated    that 

property  extends.      Wnis.   Exrs.   1655.  portion  which  descends  to  the  heir.    lb. 

272 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §   200 

such  special  exceptions  as  a  will  may  have  created)  to  the 
heir  or  devisee  ;  only  to  be  divested  afterwards  under  circum- 
stances of  necessity,  as  regards  legal  obligations,  and  when 
the  personal  assets  prove  insuflficient  for  a  due  settlement  of 
the  liabilities  of  the  estate. 

§  1 99.  Personal  Property  of  the  Decedent  vests  in  the  Execu- 
tor or  Administrator.  —  In  pursuing  his  first  and  important 
duty  of  gathering,  as  into  a  heap,  under  his  own  control,  foi 
the  purposes  of  administration,  the  property  which  the  de- 
ceased may  have  left  behind,  an  executor  or  administrator 
seeks  rightfully,  therefore,  simply  the  personal  property. 
Goods  and  chattels  of  the  deceased  person  are  to  be  traced 
out  and  brought  into  this  trust  officer's  immediate  possession 
and  control ;  for  these  are  the  assets  which  concern  him  ;  and 
title  to  such  assets  or  to  the  personal  property  of  the  de- 
ceased vests  in  the  executor  or  administrator,  if  not  prior  to 
his  probate  qualification,  at  least  back  by  relation  after  he  has 
qualified  to  the  instant  of  the  death  of  his  testate  or  in- 
testate.^ 

§  200.  Enumeration  of  Personal  Assets  ;  Choses  in  Action  as 
well  as  Choses  in  Possession.  —  Incorporeal  property  or  money 
rights,  as  well  as  corporeal  personal  property,  —  bonds,  notes, 
book  accounts,  bank  deposits,  debts  and  balances  due  the 
deceased,  as  well  as  his  cash,  household  furniture,  ornaments, 
cattle,  vessels,  and  sole  stock-in-trade, — all  these  vest  in  the 
executor  or  administrator,  therefore,  as  assets  for  administra- 
tion purposes.^  Legacies  and  distributive  shares  vested  in 
one  person  by  another's  death,  and  without  restriction,  go, 
on  his  death  before  receiving  the  same,  to  his  own  personal 
representative  as  assets.^ 

^  Rockwell    V.    Saunders,    19    Barb.  Prop.  25-1 60;  Wms.  Exrs.  650-770,  and 

473;   supra,  §  195;    Wells  v.  Miller,  45  Perkins's  notes. 

111.    382;     Touchst.   496;     Wms.   Exrs.         ^  Wms.  Exrs.  703  e(  seq.,  1656;  Slo- 

1656;    Snodgrass  v.  Cabiness,    15   Ala.  cum  v.  Sanford,  2  Conn.  533;    Bullock 

160.  V.  Rogers,  16  Vt.  294;  Kohlerz'.  Knapp, 

What   is  personal   property,  as  con-  i  Bradf.  (N.  Y.)  241. 
trasted  with    real,  the  reader  will  find         '  Storer  v.  Blalce,  31  Me.  289;   Pease 

discussed  at  length  in  I  Schoul.  Pers.  v.  Walker,  20.  Wis.  573. 


§  200  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

Savings  and  accumulations  out  of  the  general  personal 
estate  become  assets  as  well  as  the  original  estate  itself.^ 
Principal  and  interest,  capital  and  the  income  and  profits 
thereof,  vest  in  the  personal  representative,  upon  whom,  sub- 
ject to  rules  of  apportionment  upon  decease  and  specific 
dispositions  under  a  will,  devolves  usually  the  right  and  duty 
of  collecting  and  accounting  for  the  interest  and  income,  for 
the  benefit  of  the  estate  and  those  interested  in  it,  whether 
it  accrue  before  or  after  the  decease  of  the  person,  in  the 
course  of  a  prudent  management  of  his  trust. ^  So,  too, 
goods  which  have  accrued  by  increase,  and  the  offspring  or 
produce  of  animals  belonging  to  the  deceased.^  Likewise,  the 
profits  of  a  trade  or  business,  carried  on  under  or  independ- 
ently of  a  testator's  directions,  go  to  swell  the  assets  of  the 
estate ;  and  profits  made  by  speculations  with  the  assets, 
which  the  executor  or  administrator  had  no  right  to  engage  in, 
or  rightfully  with  funds  left  as  invested  by  the  deceased,  and 
not  yet  recalled,  belong  legitimately  to  the  estate,  for  the 
benefit  of  those  interested  therein.  It  is  seen,  therefore,  that 
assets  are  not  necessarily  restricted  to  personalty  which  the 
deceased  owned  in  his  lifetime,  but  embrace,  usually,  the 
proper  and  just  earnings  and  accretions  of  those  assets,  as 
they  vest  in  the  course  of  administration.* 

Rights  under  a  contract  must  be  treated  as  personalty,  and 
hence  as  vesting  a  title  for  assets  in  the  executor  or  adminis- 
trator of  the  estate.^  So  with  a  claim  for  services  rendered 
by  the  decedent  during  his  lifetime,  or  for  wages  due.^  Or  the 
fees  or  salary  of  an  employee  or  public  officer.'''  Or  one's  patent 
rights  and  copyrights,  subject  to  the  terms  of  the  statute 
relating  thereto.®     So  with  money  receivable  from  the  govern- 

1  Wingate  v.  Pool,  25  111.  118.  mere  right  to  preempt  land  goes  to  the 

2  See  Sweigart  v.  Berk,  8  S.  &  R.  executor  or  administrator.  Bowers  v. 
299;  Ray  V.  Doughty,  4  Blackf.  115;  Keesecker,  14  Iowa,  301  ;  2  Wash.  58. 
Wingate  v.  Pool,  25  111.  118.  ^  Lappin  v.  Mumford,  14  Kan.  9. 

^  Wms.  Exrs.    1657:   e.g.,    the  lambs  ^  Steger  v.  Frizzell,  2  Tenn.  Ch.  369. 

born  and  the  wool  shorn  of  a  flock  of  Salary  voted  by  a  company  to  a  person 

sheep.     Merchant,  Re,  39  N.  J.  Eq.  506.  after  his  decease,  and  paid  to  his  execu- 

*  Wms.  Exrs.  1658;  Gibblett  z/.  Read,  tor,  constitutes  assets  in  the  executor's 

9  Mod.  459.  hands.     Loring  v.  Cunningham,  9  Cash. 

^  Stewart  v.  Chadwick,  8  Iowa,  463;  87. 

Pollock,  Re,  3  Redf.  (N.  Y.)  100.     A  »  i  Schoul.  Pers.  Prop.  654,  671. 

274 


CHAP.  I.] 


ASSETS  OF  AN  ESTATE. 


§  200 


ment  in  adjustment  of  a  claim  (unless  the  title,  in  case  of  a 
claimant's  death,  goes  otherwise,  according  to  the  statute), 
such  as  indemnity  money  given  by  a  foreign  treaty  ;  ^  distin- 
guishing here  usually  between  what  government  may  allow  in 
satisfaction  of  something  due  the  decedent  and  a  mere  bounty 
or  gratuity  to  living  kindred. ^  Whatever  chattel  right  one 
has  with  another,  not  subject  to  the  harsh  rule  of  survivor- 
ship, is  thus  included.'^  So  is  a  deceased  partner's  interest  in 
the  partnership  firm  of  which  he  died  a  member;*  and  in 
computing  such  interest,  the  good  will  of  the  business  is 
proper  to  be  considered.^  So  is  a  share  in  a  newspaper  busi- 
ness ^  or  in  valuable  recipes."  Damages  assessed  in  favor  of 
the  deceased  during  his  lifetime  constitute  assets  ;^  also  the 
right  to  bring  a  suit  for  damages  suffered  by  the  decedent,  in 
respect  of  person  or  property ;  ^  and,  in  general,  claims, 
demands,  and  causes  of  action  of  every  kind,  which  survive  by 
common  law  or  statute,  so  that  the  personal  representative 
may  sue  upon  them,  together  with  the  incidental  recompense 
or  indemnity  which  may  attend  the  suit.^'' 


1  Foster  v.  Fifield,  20  Pick.  67; 
Thurston  7.  Doane,  47  Me.  79.  Cf. 
Eastland  v.  Lester,  15  Tex,  98;  Grant 
V.  Bod  well,  78  Me.  460. 

2  Grant   V.  Bodwell,  ib.;    Leonard   v 


the  business  was  continued  after  such 
partner's  death.  And  see  Wms.  Exrs. 
1659.  A  subscription-book  or  list 
containing  the  names  and  addresses  of 
correspondents  may  constitute  the  good 


Nye,    125    Mass.    455;     Phelps    v.    Mc-  will  of  a  particular  business  and  valuable 

Donald,  99  U.  S.  298.  assets  of  the  estate.    Thompson  v.  Win- 

8  Wms.   Exrs.  652.      See  as  to  joint  nebago    Co.,    48    Iowa,    155.     But   see 

and  common   ownership   of  chattels,   i  Seighman  v.  Marshall,  17  Md.  550. 

Schoul.  Pers.  Prop.   186-199;   Harris  v.  ^  Gibblett  v.  Read,  9  Mod.  459. 

Ferguson,  16  Sim.  308.  ''  lb.;   Wms.  Exrs.  1659. 

*  Wms.   Exrs.  651,   652;  Buckley   v.  ^  Astor  z/.  Hoyt,  5  Wend.  603;  Welles 

Barber,  6  Ex.  164;    Moses  v.  Moses,  50  v.  Cowles,  4  Conn.  182. 

Ga.   9;    Piatt   V.   Piatt,  42   Conn.    330;  ^  As  to  this  point,  and  for  distinctions 


Pitt  V.  Pitt,  2  Cas.  temp.  Lee,  508; 
Schenkl  v.  Dana,  118  Mass.  236.  And 
see  Hutchinson  v.  Reed,  i  Hoffm. 
(N.  Y.)  316.  The  usual  rule  is,  that  on 
the  decease   of  a  partner  the    partner- 


in  respect  of  real  and  personal  property, 
see  Part  IV.,  as  to  survival  of  actions, 
collection  of  assets,  etc. 

^"^  Money  recovered   upon   an   appeal 
bond  given  to  executors   as  an  appeal 


ship    must  be  wound   up  and  accounts  from  a  judgment   obtained  by  them  in 

settled    between    the   surviving    partner  that  character  constitutes  assets.     Sass- 

and  the  representative  of  the  deceased  cer  v.  Walker,  5  Gill  &  J.  102.     A  claim 

member.       See  Colly.  Partn.  §   199;    i  against  a   former    representative   is  an 

Schoul.  Pers.  Prop.  233;    §  325.  asset.     Nesmith.  Pf.  fX.  V.  18SS).    The 

6  Piatt  V.  Piatt,  42  Conn.  330.     Here  fact  that  a  bond  fide  claim  when  sued 

275 


§  202  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

Personal  annuities,  or  annual  payments  of  money  not 
charged  on  real  estate,  constitute  personal  property,  and  the 
richt  to  claim  arrears  goes  to  one's  executor  or  administra- 
tor,  subject  to  the  old  rule  against  apportionment,  so  far  as 
that  rule  may  apply.^  A  "  rent-charge,"  that  is,  a  burden 
imposed  upon  and  issuing  out  of  lands,  should,  however,  be 
distinguished  from  a  personal  annuity.^ 

§  20 1.  Enumeration  of  Personal  Assets  continued;  Contin- 
gent and  Executory  Interests.  —  Not  absolute  interests  alone 
in  personal  property  pass  to  the  executor  or  administrator  as 
assets,  but  contingent  interests  likewise,  provided  the  inter- 
est be  valuable  at  all  to  the  estate.^  For  choses  in  action,  and 
incorporeal  rights  of  every  kind  upon  which  a  value  may  be 
placed,  are  to  be  classed  among  assets.  In  short,  contingent 
and  executory  interests,  though  they  do  not  vest  in  possession, 
may  vest  in  right  so  as  to  be  transmissible  to  executors  or 
administrators.  But  if  the  contingency  upon  which  the  in- 
terest depended  was  the  endurance  of  the  life  of  the  party 
until  a  particular  period,  whereas  his  death  occurred  in  fact 
sooner,  there  would  occur  a  lapse  or  extinguishment  of  the 
interest,  and  nothing  transmissible  to  his  personal  represen- 
tative remaining.* 

§  202.  Enumeration  of  Personal  Assets  continued;  Stock; 
Public  and  Corporation  Securities ;  Life  Insurance  Policies.  — 
Stock  is  in  modern  times  usually  treated  as  personal  prop- 

upon  results  unfavorably  does  not  im-  ance    policy,   an    annuity,    when    given 

pair  the  right  to  consider  such  claim  as  without  words  of  restriction,  passes  to 

assets.      Robinson  v.  Epping   (Fla.),  §  the  personal  representative  for  the  ben- 

450,  812.  efit    of   the    estate.       Lord    Hardwicke 

■    ^  I  Schoul.  Pers.  Prop.  703,  704;    Co.  once    observed   that   it  was  a   personal 

Lit.  2  a;    Wms.  Pers.  Prop.  5th  Eng.  ed.  inheritance  which  the  law  suffers  to  de- 

180-182.  scend  to  the  heir.     Stafford  v.  Buckley, 

2  2  Bl.  Com.  40,  41.     It  was  formerly  2  Ves.  Sen.  170.     And  see  Wms.   Exrs. 

questioned  whether  annuities  were  realty  809,  810. 

or  personalty;  for,  when  granted  with  ^  Wms.  Exrs.  653,  887;  Peck  v.  Par- 
words  of  inheritance,  an  annuity  is  held  rot,  I  Ves.  Sen.  236;  Fyson  v.  Cham- 
to  descend  to  the  heir  to  the  exclusion  bers,  9  M.  &  W.  460;  Clapp  v.  Stough- 
of  a  personal  representative.  Turner  v.  ton,  10  Pick.  268;  Ladd  v.  Wiggins,  35 
Turner,  Ambl.  782.  But  this  appears  to  N.  H.  421;  Johns  t/.  Johns,  i  McCord, 
be  out  of  respect  simply  to  the  express  132:  Dunn  v.  Sargent,  lOl  Mass.  336. 
terms  of  its  creation.     Like  a  life  insur-  *  Wms.  Exrs.  889. 

276 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  203 

erty,  notwithstanding  the  corporation,  a  railway  or  turnpike 
company,  for  instance,  derive  its  profits  in  a  certain  sense 
from  the  use  of  real  estate.^  Dividends  declared  by  a  stock 
company  during  the  decedent's  life,  and  not  collected,  belong 
to  his  estate  as  personal  assets,  as  does  also  the  stock;* 
while,  in  respect  of  dividends  declared  and  payable  after  his 
death,  the  executor  or  administrator  usually  collects  for  the 
purposes  of  his  trust,  accounting  in  a  proper  manner,  as  the 
directions  of  the  testator  and  the  general  law  of  administra- 
tion may  require.  Stock  in  the  public  funds,  and  govern- 
ment and  municipal  bonds  and  securities  of  all  kinds,  are 
likewise  treated  as  personal  property  at  the  present  day.^ 
And  all  these,  being  personal  property  of  the  incorporeal 
sort,  are  transmitted  as  personal  and  primary  assets  to  the 
executor  or  administrator  upon  the  owner's  decease. 

If  in  a  life  policy  the  assured  himself  is  named  the  benefi- 
ciary the  money  accruing  at  his  death  belongs  as  assets  to 
his  estate,*  though  not  where  the  policy  is  expressed  for  the 
benefit  of  some  other.^ 

§  203.  Enumeration  of  Personal  Assets  continued ;  Personal 
Property  taken  or  given  in  Security.  —  Debts  owing  the  de- 
ceased upon  chattel  security,  such  as  pledge,  mortgage,  and 
lien  to  the  testate  or  intestate,  give  the  benefit  of  the 
security  to  the  estate  ;  and  the  security  must  not  be  left  out 
of  the  consideration  in  the  assets.  But  bonds  executed  to  an 
administrator  or  executor  in  his  fiducial  character,  in  con- 
sideration of  assets  transferred  by  him,  are  not  necessarily 
assets  for  the  benefit  of  the  estate.^  Security,  in  general, 
enures  for  the  direct  benefit  of  that  upon  which  the  security 

1  See  I  Schoul.  Pers.  Prop.  617-624;  ^  Welles  v.  Cowles,  4  Conn.  182. 

Bligh  V.  Brent,  2  V.  &  C.  268;   VVeyer  »  Wms.   Exrs.   812,   813;     I    Schoul. 

V.    Second   Nat.    Bank,    57    Ind.    198.  Pers.  Prop.  614-616. 

Canal  shares,  etc.,  were  considered  real  *  Union  Mut.  Life  Ins.  Co.  v.  Stevens, 

property,  but  this  rule  has  long  since  igFed.  R.  671;    Hathaway  v.  Sherman, 

changed.      To   remove  all  doubt,    the  61    Me.  466;    Butson,  AV,  9  L.   R.    Ir. 

legislature,  in  acts  of  incoporation,  fre-  21. 

quently  declares  that  the  stock  shall  be  ^  See  §  211. 

considered  personal  property.    See  Dry-  ^  Saffran  v.  Kennedy,  7  J.  J.  Marsh, 

butter  V.  Bartholomew,  2  P.  Wms.  127;  187. 
Wms.  Exrs.  811. 

277 


§  204  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

was  placed  ;  and  hence  a  bond  of  indemnity,  or  a  judgment 
recovered  thereon  by  the  deceased  during  his  hfetime,  vests 
only  as  assets  for  the  purpose  of  applying  it  to  the  satisfac- 
tion of  the  debt  or  demand  against  which  the  indemnity  was 
afforded.  1  Whatever  a  debtor  may  give  the  executor  or  ad- 
ministrator, to  secure  or  discharge  what  he  owes,  belongs 
to  the  estate.^ 

Debts,  on  the  other  hand,  owing  from  the  deceased,  and 
secured  by  pledge  or  mortgage  of  his  personal  property,  or 
a  lien  thereon,  leaves  the  surplus  as  general  assets  of  the 
estate  beyond  such  sum  as  may  be  required  for  discharging 
the  security  ;  or,  as  one  might  say,  the  personal  property 
given  in  security  constitutes  assets,  subject  to  the  preferen- 
tial claim  of  the  secured  creditor.^ 

§  204.  To  constitute  Personal  Assets,  the  Title  must  have  stood 
in  the  Decedent  at  his  Death.  —  The  deceased  must  have  owned 
such  personal  property  or  been  the  creditor  or  claimant  at  the 
time  of  his  death,  since  otherwise  the  title  cannot  devolve 
upon  his  legal  representative ;  and  the  decedent's  title,  when 
he  died,  is  the  criterion  of  the  title  which  devolves  upon  his 
personal  representative.  Thus,  notes,  securities,  or  other 
incorporeal  property  bond  fide,  and  regularly  transferred  to 
others  by  the  decedent  during  his  lifetime,  and  indorsed, 
assigned,  or  delivered,  with  mutual  intention  that  the  title 
should  so  pass,  do  not  vest  in  the  representative  of  the  de- 
ceased ;  *  and  the  same  may  be  said  of  corporeal  goods  and 
chattels,  duly  delivered  upon  a  like  understanding,  by  the 
decedent.^  If,  however,  the  transfer  was  voluntary  and  fraud- 
ulent against  one's  creditors,  remedies  are  open  and  should 

^  Molloy    V.    Elam,    Meigs    (Tenn.)  v.  Bishop,  27  La.  Ann.  465.     As  to  the 

ego.  general    subject    of    assignment,    see   2 

2  See  32  Hun,  599;   Sain  v.  Bailey,  Schoul.  Pers.  Prop.  673.     The  old  doc- 

90  N.  C.  566.  trine  of  the  law  was  that  a  chose  in  action 

'  I  Leon.  155,  225;  Wms.  Exrs.  1660;  could  not  be    assigned.      2  B.    Moore, 

Vincent  v.  Sharp,  2  Stark.  N.  P.  507;  186,  187.     But  equity  has  so  encroached 

Haynsworthz;.  Frierson,  II  Rich.  (S.C.)  upon  the  law  that   every  species  of  in- 

476.  corporeal  property,  with  a  few  nominal 

*  Wms.  Exrs.  1675;    i  Salk.  79.  exceptions,  may  now  be  practicallv  as- 

6  Thomas   v.   Smith,  3   Whart.  401;  signed  so  as  to  pass  the  title.     2  Schoul. 

Garner  v.  Graves,  54  Ind.  188;   Burke  Pers.  Prop.  673. 

278 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  20$ 

be  pursued,  as  we  shall  sec,  for  assailing  such  stranger's 
title. ^  And  since  legal  transfer  implies  parting  with  dominion 
over  the  thing,  any  professed  transfer  during  one's  life  which 
left  the  possession,  control,  and  power  to  revoke  in  the  trans- 
ferrer, keeps  his  title  virtually  undivcsted,  so  that  at  his  de- 
cease the  chattel  must  be  administered  as  assets.^  Nor  does 
a  bailment,  made  under  instructions  which  death  counter- 
mands, divest  the  donor's  title.^ 

Where,  on  the  other  hand,  personal  property  attached  by 
the  trustee  process  was  assigned  by  the  owner  subject  to  the 
attachment,  and  such  attachment  was  dissolved  by  the  owner's 
death,  it  was  held  that  the  property  passed  by  the  assignment 
and  did  not  constitute  assets  available  for  administration.'* 
Advancements  made  during  life  to  children  are  regarded 
essentially  as  gifts ;  so  that  these  are  not  to  be  reckoned 
among  assets  of  the  estate.^  The  mistaken  delivery  of  a 
thing  by  its  custodian  to  the  executor  or  administrator,  where 
the  title  had  in  fact  passed  out  of  the  owner  before  his  death, 
does  not  conclude  it  as  assets  ;  for  it  is  proper  that  the  mis- 
take be  rectified.^ 

§  205.  Personal  Property  of  Another  among  the  Goods  of 
Deceased  not  Assets ;  Identification.  —  If  goods,  money,  or  se- 
curities belonging  to  another  person  lie  amongst  the  goods 
of  the  deceased,  capable  of  identification,  and  they  come 
altogether  to  the  hands  of  the  personal  representative,  such 
other  person's  things  are  not  to  be  reckoned  among  assets 
of  the  estate.''  Nor  is  money  collected  by  an  attorney, 
factor,  or  agent,  and  kept  distinct  and  unmixed  with  the  rest 
of  his  property.^  So,  property  held  by  a  trustee  or  fiduciary 
officer  is  not  assets  in  the  hands  of  his  executors,  adminis- 
trators, or  assignees  ;  but  a  new  trustee  should  rather  be  ap- 

'  See  §  2<)'j,  post.  *  Coverdale  v.  Aldrich,  19  Pick.  391. 

2  Cummings   v.  Bramhall,   120  Mass.         ^  See /o.f/ as  to  advancements  ;    Wms. 

552;  Madison  z/.  Shockley,  41  Iowa,45i.  Exrs.  1498,  1502. 

8  Bigelow  V.  Paton,  4  Mich.  170.     A         «  Sherman  v.  Sherman,  3  Ind.  337. 
promissory  note  should  be  charged   as         ^  Wms.  Exrs.  1675;  Cooper  <-.  White, 

assets,  notwithstanding  oral  expressions  19  Ga.  554. 

used  bv  the  deceased  to  his  executor  in-         ^  Schoolfield    v.    Rudd,    9   B.    Mon. 

su licieiit   to  constitute  a  release.     Byrn  291. 
V.  Godfrey,  4  Ves.  6. 

279 


§  206  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

pointed  to  hold  the  fund  in  the  stead  of  the  decedent.^  Only 
those  things  in  which  the  decedent  had  a  beneficial  interest 
at  his  death  are  assets,  and  not  those  which  he  holds  in  trust 
or  as  the  bailee  or  factor  of  another.^ 

In  order,  however,  that  the  third  party  or  new  fiduciary 
may  claim  his  specific  thing  as  separable  from  assets,  its 
identity  should  have  been  preserved  ;  and  the  rule  is  that 
if  the  deceased  held  money  or  other  property  in  his  hands 
belonging  to  others,  whether  in  trust  or  otherwise,  and  it  has 
no  ear-mark  and  is  not  distinguishable  from  the  mass  of  his 
own  property,  it  falls  within  the  description  of  assets  ;  in 
which  case  the  other  party  must  come  in  as  a  general 
creditor.^ 

The  receiver  of  letters,  we  may  add,  has  but  a  qualified 
property  in  them  ;  they  pass  to  the  executor  or  administrator, 
but  not  as  available  assets,  inasmuch  as  the  sender  is  inter- 
ested in  their  publication.* 

§  206.  Personal  Property  of  the  Decedent  left  in  Another's 
Possession  is  Assets.  —  Personal  property  belonging  to  the  de- 
ceased, on  the  other  hand,  which  was  in  the  possession  or 
control  of  a  third  person,  whether  rightfully  or  wrongfully,  at 
the  time  of  his  death,  will  vest  as  assets  in  the  executor  or 
administrator  of  the  owner ;  and  to  him  the  custodian  should 
surrender  possession  ;  though  here,  once  more,  the  decedent's 
property  must  be  capable  of  identification,  else  there  is  left 
but  a  right  of  action  to  recover  their  value  or  damages. 
Chattels  and  money  in  the  hands  of  a  deceased  minor's 
guardian  vests  likewise  for  purposes  of  administration  in  the 
minor's  executor  or  administrator,  if  there  be  one ;  and  this 
even  though  the  guardian  may  be  eventually  entitled  to  the 
same  as  legatee  or  distributee  after  the  estate  is  settled.^ 

^  United  States  7/.  Cutts,  1  Sumn.  133;  4    Mason,    29;    Johnson   v.   Ames,    il 

Johnson  v.  Ames,  II  Pick.  173;  Green  Pick.  172. 

V.  Collins,  6  Ired.  L.   139;    Thompson         *  Eyre    v.    Higbee,    35    Barb.    502; 

V.   White,   45    Me.   445;    Wms.    Exrs.  Pope  v.  Curl,  2  Atk.  342. 
1675.  ^  Bean  v.  Bumpus,  22  Me.  549.  What- 

2  See  Shakespeare  v.  Fidelity  Co.,  97  ever   one   receives  before  appointment 

Penn.  St.  173.  are  assets.     Head  v.  Sutton,  31    Kan. 

'  Story,  J.,  in  Trecothick  v.  Austin,  616. 

280 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §  208 

§  207.  Personal  Property  constitutes  Assets  notwithstanding 
Ultimate  Title  of  Legatees,  Heirs,  etc.  —  Personal  property  con- 
stitutes assets  for  the  purposes  of  administration  and  a  gen- 
eral winding  up  of  the  deceased  person's  estate  ;  even  though 
upon  a  due  adjustment  that  property  or  its  residue  shall  go  to 
legatees,  general  or  specific,  or  to  residuary  legatees  or  dis- 
tributees, or  trustees,  if  not  otherwise  needed  ;  for  adminis- 
tration is  in  fact  the  crucial  test  by  which  the  title  of  all  such 
parties,  through  the  sufficiency  or  deficiency  of  the  estate, 
shall  be  determined,  and  the  title  devolves  first  of  all  upon 
the  decedent's  personal  representative.^ 

§  208.  Debt  due  from  Representative  or  Legatee,  etc.,  to  the 
Decedent  constitutes  Personal  Assets.  —  By  the  common  law, 
the  appointment  of  one's  debtor  to  be  the  executor  of  the 
will  was  held  to  extinguish  the  debt;^  and  so  far  was  the 
rule  carried,  out  of  favor  to  the  representative,  that  if  he  died 
before  probate  or  was  one  of  joint  debtors,  extinguishment 
occurred,  notwithstanding  the  technical  reasons  given  for  the 
doctrine.^  But  this  is  changed  in  most  parts  of  the  United 
States  by  statutes  whose  intendment  appears  to  be  to  place 
the  debt  owing  from  a  personal  representative  upon  the  same 
footing  with  debts  due  the  estate  from  other  sources;*  and 
our  probate  and  equity  rule  is  to  hold  the  executor  account- 
able for  the  debt  as  assets.  In  some  States  where  the  old 
rule  has  been  discarded,  the  right  of  those  interested  in  the 
estate  to  compel  the  executor  or  administrator  to  charge  him- 

1  See  Woodfin  v.  McNealy,  9  Fla.  256.  Odell,  27  Ohio  St.  398.     And  see  Eng- 

2Cro.  Car.  373;    i  Salk.  299;  Cheet-  lish  stat.   i  Vict.  c.  26,  §  7;    20  &    21 

ham  V.  Ward,   I    B.  &    P.  630;   Wms.  Vict.  c.  77,  §  79;    Wins.   Exrs.   15,  286, 

Exrs.  1 3 10;    Co.  Lit.  264  b.  131 2.      The    effect   of  the  New    York 

3  Perhaps,    where    the    executor    re-  statute  charging    the   representative  as 

nounced,    the    rule   was    different.     In-  for  money,  etc.,  is  not  to  discharge  any 

tendinent  of  the  will  appears  to  be  the  security  given  for  the  debt.      Soverhill 

true    reason;     but    that    alleged    by  the  v.  Suydam,  supra.     Where  one  of  two 

courts    was,    the    rights    of  debtor   and  administrators   was    liable    as  principal 

creditor    tinited    in    one    and   the   same  to  the  intestate  who  was  his  surety,  his 

person.     Wms.  Exrs.  1310.  liahilitv  to  the  intestate's  estate  is  assets 

*  McCartv    v.    Frazer,    62    Mo.    263;  in  the  administrator's  hands,  for  which 

Adair  71.  Brimmer,  74  N.  Y.  539;  Sover-  they  are  both  accountable.     Bas^ett  v. 

hill  V.  SnvHam,   i;9  N.  Y.  142;    Jncobs  dranger,    i'?6    Mass.     175.       And    see 

V.  Woodside,  6  Rich.  490;  Shields   v.  Hines  v.  Hines,  95  N.  C.  482. 

281 


§  208  EXECUTORS    AND    ADMINISTRATORS.  [PART  IJI. 

self  with  an  indebtedness  due  from  him  to  the  deceased,  is  fully 
recognized  ;  but  it  is  said  that  as  soon  as  the  debtor  is  ap- 
pointed, if  he  acknowledges  the  debt,  he  has  actually  received 
so  much  money  and  is  answerable  for  it,  he  and  the  sureties 
of  his  probate  bond,  in  like  manner  as  if  he  had  received  it 
from  any  other  debtor  of  the  deceased.^ 

The  fact  that  the  representative  charges  himself  in  his  in- 
ventory or  account  with  his  debt,  settles  the  question  that  he 
owes  the  estate  and  the  amount  of  his  debt ;  it  is  a  fact  upon 
which  great  stress  is  laid  ;  but  an  executor  cannot  escape  his 
liability  or  change  the  character  of  it  by  failing  to  charge 
himself  with  his  own  debt ;  nor  is  charging  himself  with  it  the 
only  way  in  which  the  fact  of  his  indebtedness  may  appear 
or  be  proved. 2  An  extinguishment  of  the  instrument  upon 
which  the  indebtedness  was  founded,  may,  independently  of 
statute,  occur  here  by  operation  of  law,  with  the  modern 
consequence  that  the  sums  due  thereon  have  become  realized 
assets  of  the  estate  ;  ^  but  the  rule  appears  not  to  apply  re- 
gardless of  the  particular  circumstances. 


1  Stevens  v.  Gaylord,  II  Mass.  269;  presumption  only,  and  that  if  the  rep- 

Leland   v.    Felton,    i   Allen,   531,    and  resentative  shows  that    he  cannot  pay, 

cases  cited;    Hall  v.   Hall,   2   McCord  and  has  not  paid,  he  need  not  be  charged 

Ch.  269.     Upon  the  acceptance  of  the  with  the  debt  as  cash.  Baucus  j'.  Stover, 

trust,  and  returning  the  same  in  the  in-  24  Hun,  109;    United  States  v.  Eggles- 

ventory   as   assets   of  the   deceased,    a  ton,  4  Sawyer,  199;    3  Dem.  610;  §  542. 

correspondent  legal  liability  is  assumed  The  appointment  c/e  bonis  iion  of  one 

which    cannot  be  divested  by  a  subse-  who  was  surety  on  the  bund  of  his  pred- 

quent  resignation  of  the  trust.     Leland  ecessor   does    not  make  a  debt  due  the 

V.  Felton,  i    Allen,  531.      Indeed,  the  estate  from  such   predecessor   assets  in 

liability  to  duly  account  for  such  a  debt  his  hands  by  reason  of  his  suretyship, 

is  assumed  on  acceptance  of  the  office.  Shields  v.  Odell,  27  Ohio  .St.  398. 

lb.  2  Endicott,  J.,   in  Tarbell  v.   Jewett, 

Yet  the  return  of  a  debt  in  the  inven-  129  Mass.  457,  461. 

tory  as  solvent  is  Msw&Wy  primd  facie  ^  Tarbell  v.    Jewett,  129  Mass.   457; 

proof  that  it  is  collectible,  and  by  no  Freakley  t/.  Fox,  9  B.  &C.  130;  Ipswich 

means  conclusive  proof  that  it  has  been  Man.  Co.  v.  .Story,  5  Met.  310. 

collected.     The  rule  if  asserted,  as  in  The    general    rule    is    that  where    a 

the  text,  with  especial  stringency  against  judgment  debtor  becomes   the  personal 

the    representative's    own    debt    to  the  representative  of  the  judgment  creditor, 

deceased,  is  from  motives  of  policy,  and  the   judgment    is  extinguished,  and   the 

to  discourage  bad  faith  under  circum-  debt  becomes  a   realized    asset    in   his 

stances    of  especial    temptation.      The  hands   to    be  accounted    for    in    court, 

more  consistent  rule  appears  to  be  that  But  this  rule  is  subject  to  manv  excep- 

the   return   of  the   inventory  affords  a  tions;    and  the   manner   in   which  the 

282 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §   209 

A  debt  due  the  tleceased  from  a  Icjjjatce  or  distributee 
is  furthermore  reckoned  as  assct.s  by  the  modern  rule,  in  the 
absence  of  evidence  that  forgiveness  of  the  debt  was  intended  ; 
and  for  realizing  upon  this  indebtechiess,  the  legacy  or  sur- 
plus accruing  to  such  person  may  afford  good  security.^ 
Forgiveness  of  a  debt,  therefore,  operates  pro  tanto,  if  so 
limited  by  the  deceased  ;  and  this  is  a  rule  of  general  appli- 
cation. Thus,  where  one  leaves  a  legacy  and  releases  only 
the  principal  of  an  interest-bearing  debt,  the  interest  should 
be  treated  as  assets  and  set  against  the  legacy ;  ^  the  true 
intent  of  the  transaction  resolving,  however,  the  question. 

Where  the  partner  of  a  firm  or  the  officer  of  a  corporation, 
owing  the  deceased  a  debt,  becomes  executor  or  administra- 
tor, the  indebtedness  becomes  assets  in  his  hands.-'^  An 
administrator,  who  owes  the  estate  to  which  he  was  appointed, 
must  account  for  the  debt ;  and  since  his  appointment  was 
not  the  act  of  the  creditor,  the  common  law  never  treated 
him  as  privileged  like  an  executor  in  this  respect.* 

§  209.  Personal  Assets  coining  to  the  Kno'wledge  but  not  Pos- 
session of  the  Representative.  —  An  executor  or  administrator 
is  chargeable,  because  of  the  trust  he  has  accepted,  with 
goods  and  chattels  of  the  deceased  coming  to  his  possession 
or  knowledge ;  and  the  want  of  actual  possession  does  not 
dispense  with  prudent  attempts  on  his  part  to  collect,  en- 
force, or  obtain  possession.  All  the  chattels  of  the  deceased, 
wherever  situated,  are  assets,  if  the  representative,  by  reason- 
able diligence,  considering  the  means  of  the  estate  already 
under  his  control,  might  have  possessed  himself  of  them.^ 
If  the  jurisdiction  afforded  by  his  letters  of  authority  does 
not  enable  him  to  obtain  or  collect  them,  it  is  somewhat  dif- 

representative  treats  this  judgment  debt  '^  Hallowell's     Estate,    23    Penn.    St. 

in   the   course   of  his    dealing  with    the  223. 

estate  may   affect   the  question   whether  •*  Eaton  v.  Walsh,  42  Mo.  272. 

an  extinguishment    has    actually    taken  *  I    Salk.  306.     It   was  said    that    in 

place.       Charles     v.     Jacob,     9    S.    C.  case   of  an  administrator  there  was,  at 

295.  most,   only  a  suspension  of  the  remedy 

^  Post,  §  248,  as  to  the  effect  of  giving  on  his  appointment, 

a  legacy   to   one's  debtor;    Wms.   Exrs.  "Gray  v.   Swain,  2   Hawks.    (M.  C.) 

'303>     1304;      Springer's     Appeal,    29  15;   Tuttle  v.  Robinson,  33  N.  H.  104; 

Penn.  St.  208.  Palmer  v.  Palmer,  55  Mich.  293. 

283 


§  2IO  EXECUTORS    AND    ADMINISTRATORS.  [pART  III, 

ferent ;  and  yet  as  to  such  assets,  one  appointed  within  the 
original  jurisdiction  should  have  ancillary  letters  taken  out, 
if  this  course  appear  prudent,  in  order  that  no  reasonable 
means  may  be  wanting  to  gather  in  the  whole  of  the  dece- 
dent's personal  estate.^ 

On  the  other  hand,  chattels  of  the  deceased,  not  procured 
from  the  possession  of  others,  and  debts  uncollected,  do  not 
constitute  available  assets  in  the  hands  of  his  executor  or  ad- 
ministrator, where  there  has  not  been  culpable  negligence  or 
remissness  on  his  part  in  the  trust  ;2  though  it  would  appear 
incumbent  upon  such  fiduciary  to  consider  himself  charge- 
able with  all  such  things,  and  be  prepared  to  show  why  he 
failed  to  collect  or  obtain  possession  of  each  according  to  its 
value,  while  in  the  exercise  of  his  official  functions. 

§  2IO.  Personal  Assets  or  not,  ■where  Decedent's  Title  vraa 
Qualified. —  In  what  has  been  said  under  the  present  head,  we 
have  supposed  the  title  to  personal  property,  indeed,  to  be  so 
vested  in  the  deceased  at  his  death,  as  properly  to  devolve  at 
once  upon  his  legal  representatives.  But  where  the  deceased 
was  entitled  to  the  chattel  or  fund,  jointly  with  another,  so  as 
to  carry  the  title  over  to  his  survivor,  or  in  common,  or  in 
partnership,  or  under  a  trust  which  excluded  his  beneficial 
interest,  —  in  these  and  similar  peculiar  relations,  the  title  not 
devolving  upon  the  executor  or  administrator  of  the  deceased, 
or  devolving  not  with  respect  to  the  specific  thing,  but  rather 
so  as  to  constitute  a  claim  for  partition  of  a  thing,  or  for 

^  Supra,  §    175,   as  to  assets  out   of  ciary,  whether  the  things  have  come  to 

the  sovereign  jurisdiction.  his  possession  or  not,  and  is  personally 

2  Tuttle  V.  Roliinson,  ;}^  N.  H.  104;  chargeable  with  the  value  of  that  which 

Ruggles    V.   Sherman,    14   Johns.    446.  belonged   to  the  estate,  and  was  lost  o» 

The  general  rule  laid   down  in  the   old  never  recovered  at  all  through  his  neg- 

books  is  that  an  executor  or  administra-  ligence.     The  English  doctrine  appears 

tor  shall  not  be  charged  with  any  other  to  regard  the  executor  as  a  "  gratuitous 

goods  or  assets  than  those  "which  come  bailee";  but  in  the  United   States,  and 

to    his    hands."     But    the    construction  where    the    trust    is   regularly    compen- 

placed  upon  this  expression  is  such  as  sated,  it  seems  that  his  responsibility  is 

to  deprive  it  of  literal  force.     See  5  Co.  equivalent  to  that  of  a  bailee   for  hire. 

33  b,  34  a;   Wentw.  Off.  Ex.   227,   14th  Under  an  appropriate  head  this  subject 

ed.;   Wms.  Exrs.  1667,  1668.     The  ex-  will  be  more  fully  considered  hereafter, 

ecutor    or    administrator    is,    in    truth.  See  Part  IV.,  post. 
chargeable,  as  a  sort  of  bailee  or  fidu- 

284 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  211 

sharing  in  the  surpkis  of  some  fund  yet  to  be  ascertained, 
there  is  nothing  to  be  considered  assets,  or  else  the  assets 
assume  for  administration  a.  different  shape,  such,  for  in- 
stance, as  an  undivided  interest,  or  a  claim  to  some  unascer- 
tained surplus.^  All  this  is  in  general  conformity  with  the 
laws  which  regulate  the  transfer  and  transmission  of  title  to 
personal  property.- 

§  21  r.  Various  Cases  where  Representative  does  not  hold 
strictly  as  Assets.  —  So,  again,  the  principles  which  regulate 
the  reciprocal  title  of  husband  and  wife,  whether  under  the 
old  coverture  rules  or  as  embodied  in  statutes  passed  for 
the  more  especial  behoof  of  the  surviving  widow,  may  affect 
the  transmission  of  title  as  assets  to  the  personal  represen- 
tative ;  depriving  him  of  the  right  to  take  possession,  or  to 
collect,  or  making  him  a  mere  conduit  of  title  to  the  surviving 
spouse,  regardless  of  creditors  of  the  estate.^  And  in  various 
other  instances  legislators  exhibit  tenderness  toward  the  dis- 
tressed survivors  of  a  family  at  the  expense  of  those  who  have 
claims  upon  the  general  assets;*  all  of  which  qualifications 
to  his  authority  the  legal  representative  of  an  estate  should 
duly  observe. 

The  proceeds  of  a  life  insurance  policy  taken  out  by  the 
decedent  and  expressed  to  be  payable  to  another,  as,  for  in- 
stance, to  his  widow  or  a  child,  or  in  trust  for  such  a  one's 
benefit,  are  not  assets  of  the  estate  ;  ^  though  it  may  be  that 
suit  should  be  hxow^t  pro  forma  in  the  representative's  name 


1  See  as  to  a  debt  or  legacy  going  to  2  ggg   2    Schoul.    Pers.    Prop.,    I,    2, 

a  survivor,  Green    v.   Green,  3   Sm.  &  and  other  general  works  upon  Personal 

M.    256;     Cote    V.    Dequindre,    Walk.  Property. 

(Mich.)  64.     As  to  a  deceased  partner's  ^  Schoul.  Hus.  &  Wife,  §§  409,  414; 

interest  in  his  partnership  firm,  Piatt  v.  post,  §  447,  as  to  a  widow's  parapher- 

Platt,  42  Conn.   330;    Moses  v.  Moses,  nalia,  allowances,  etc. 

50  Ga.  9.  *  lb.     As   to   property  exempt    from 

Where  a  surviving  partner  is  also  ex-  administration,  see  Taylor  v.  Pettiis,  52 

ecutor  of  the  estate  of  his  deceased  co-  Ala.    287;    Heard   v.   Northington,   49 

partner,    and    he    collects    partnership  Tex.  439. 

assets  which  are  not  needed  to  pav  pnrt-  ^  Senior  v.  .Ackerman,  2  Redf.  CNV.) 

nership  del)ts,  he  will  be  presumed  to  302;  Cablet;  ?'.  Prescott,  67  Me.  582;  Van 

hold  such  assets  as  executor.     Caskie  v.  Dermoor,  Re,  42  Hun,  326. 
Harrison,  76  Va.  85. 

285 


§  212  EXECUTORS    AND    ADMINISTRATORS.  [PART    III. 

on  behalf  of  the  beneficiary  named.  But  where  the  person 
insured  takes  out  hfe  insurance  generally,  and  not  for  the 
express  benefit  of  others  surviving  him,  or  v^here  the  bene- 
ficiaries named  have  predeceased,  the  fund  goes  properly  to 
legal  representatives  for  the  benefit  of  the  estate,  and  be- 
comes assets  for  the  payment  of  debts.^  Pensions  and  public 
gratuities,  or  pay  for  army  and  navy  service,  are  often  made 
payable  for  the  direct  benefit  of  widow,  children  or  parents  ;  ^ 
and  public  statutes,  thus  expressly  providing  for  the  beneficial 
payment  of  arrears  to  surviving  members  of  a  family,  exclude 
the  notion  of  general  assets  for  creditors.  There  are  other 
instances  where  personal  property  may  come  to  the  executor 
or  administrator  pro  forma,  and  yet  be  applicable  only  to 
special  purposes.^ 

§  2 1 2.  Real  Estate  descends  to  Heirs ;  not  Assets  except  for 
Deficiency.  —  Real  estate,  at  the  common  law,  becomes  vested 
on  the  death  of  the  owner  in  his  heirs  or  devisees,  and  the 
executor  or  administrator  has  no  inherent  power  over  it. 
Lands,  therefore,  are  not  in  a  primary  sense  assets,  to  be 
appropriated  for  the  benefit  of  creditors  ;  nor  has  chancery 
jurisdiction  to  decree  their  sale  at  the  suit  of  a  creditor, 
unless  he  has  some  specific  lien  or  right  therein.^  It  is 
only  as  legislation,  or  the  will  of  a  testator  may  have  con- 
ferred an  express  power  upon  the  executor  or  administrator, 
that  he  can  exert  it  in  respect  of  real  estate,  unless  authority 
has  been  conferred  by  the  heirs  or  devisees  themselves.  But 
modern  enactments,  as  we  shall  see  hereafter,  usually  permit 
the  lands  of  a  deceased  owner  to  be  subjected  to  the  satisfac- 
tion of  his  just  debts,  in  so  far  as  the  personalty  falls  short 

1  Hathaway  w.  Sherman,  6 1  Me.  466;  3  Sim.  97;  Hassall  v.  Smithers,  12 
Butson,  Re,  9  L.  R.  Ir.  21;  Union  Mut.  Ves.  119.  E.g.,  money  due  from  bene- 
Life  Ins.  Co.  v.  Stevens,  19  Fed.  R.  fit  associations.  5  Dem.  (N.  Y.)  326; 
671.  Bishop  V.  Curphey,  60  Miss.  22. 

2  Perkins  z/.  Perkins,  46  N.  H.  no.  MVms.  Exrs.  650;  Drinkwater  v. 
And  see  post  as  to  distribution  under  Drinkwater,  4  Mass.  354;  I  ucy  v. 
modern  statutes  which  give  compensa-  Lucy,  55  N.  H.  9;  Laidley  v.  Kline,  8 
ti<m  to  the  widow,  children,  etc.,  of  one  W.  Va.  218;  Hankins  z/.  Kimball,  57 
killed,  by  the  tort  of  a  person  or  corpo-  Ind.  42  ;  McPike  v.  Wells.  54  Miss, 
ration.  136;   Le  Movne  w.  Quimby,  70  111.  399; 

8  Wms.  Exrs.  1677;   Parry  v.  Ashley,     Sheldon  v.  Rice,  30  Mich.  296. 

286 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  -'S 

of  paying  them,  and  general  provision  is  made  for  sale  by 
the  executor  or  administrator  under  a  judicial  license  accord- 
ingly.^ When  the  necessity  arises  to  deal  with  lands  as 
assets,  the  heirs  or  devisees  should  have  due  notice,  nor  in 
any  case  can  their  beneficial  rights  be  safely  ignored.^ 

Moreover,  the  personal  representative  will  only  be  per- 
mitted to  sell  so  much  of  the  land  as  may  discharge  the 
debts,  unless,  perhaps,  by  a  partial  sale  the  interests  of  the 
heirs  and  devisees  would  be  unduly  injured.  And  even 
though  it  should  become  necessary  to  make  a  sale  under  a 
license,  the  executor  or  administrator,  as  such,  is  not  called 
upon  to  perfect  the  title  or  relieve  the  land  of  any  burden  ; 
but  he  should  sell  as  he  finds  it.  Should  there  be  a  fictitious 
incumbrance  on  the  lands  that  would  deter  purchasers  from 
buying,  it  is  eminently  proper  for  the  heir  or  devisee,  in  order 
to  protect  his  estate  by  procuring  a  full  price,  to  institute 
proceedings  for  removing  the  incumbrance.  But  separate 
creditors  against  the  estate  acquire  no  such  interest  or  spe- 
cific lien  on  the  premises  as  justifies  such  proceedings  on 
their  part,  even  though  the  sale  were  necessary  for  paying 
their  claims.^ 

§  2 1 3.  Executor  or  Administrator  has  no  Inherent  Authority 
as  to  Real  Estate.  —  It  follows  generally  that  if  the  repre- 
sentative takes  possession  of  the  real  estate  of  the  deceased, 
he  is  accountable  to  the  heirs  as  their  agent,  and  not,  strictly 
speaking,  to  the  probate  court  in  his  official  capacity,  though 
for  convenience  he  will  often  manage  as  by  consent  of  the 
heirs.*  Proceeds  of  a  sale  by  an  executor  empowered  under 
the  will  to  sell  for  the  benefit  of  legatees  are  not  presumably 


1  lb.  See  post,  Part.  VI.,  c.  2,  as  to  heirs  to  permit  the  representative  to 
sale  of  lands  under  license,  etc.  collect  rents,  and  this  course   may  save 

2  McPike  V.  Wells,  54  Miss.  136.  sometimes  the  sale  of  the   real   estate 

3  Le  Moyne  v.  Quimby,  70  111.  399.  to  pay  debts.    Kimball  z/.  Sumner,  «//r<7. 

*  Taylor,  Landl.  &  Ten.  §  390;  Mc-  Inasmuch  as  the  administrator  who  col- 
Coy  V.  Scott,  2  Rawle,  222;  Kimball  v.  lects  rents  holds  them  for  the  heir,  and 
Sumner,  62  Me.  309;  Lucy  v.  Lucy,  55  not  as  assets  for  the  creditors,  he 
N.  H.  9;  Palmer  t.  Palmer,  13  Gray,  holds  them  for  his  own  use  where  he 
328;  Kidwell  V.  Kidwell,  84  Ind.  224.  himself  is  the  heir.  Schwartz's  Estate, 
It   is   sometimes   of    advantage    to  the  14    Penn.    St.   42.      In   Michigan    and 

287 


§214  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

to  be  brought  into  the  general  administration.^  The  repre- 
sentative has  no  cause  to  recover  possession  of  the  lands  of 
the  deceased  by  a  suit  at  law,  and  cannot  maintain  such  a 
suit.2  Land  conveyed  in  fraud  of  creditors  forms  no  part  of 
the  deceased  grantor's  estate,  and  it  is  the  creditors,  not  the 
administrator,  v^ho  should  attack  the  conveyance.^  And 
whatever  means  a  creditor  may  lawfully  pursue  in  order 
to  render  the  heirs  of  the  deceased  liable  with  the  per- 
sonal representative  to  settle  his  demand,  the  personal  assets 
of  the  estate  must  be  exhausted  before  resort  can  be  had  to 
the  realty.* 

§  2 14.  Real  Estate  of  Mortgagor  or  Mortgagee  ;  Rule  of  Assets. 
—  Where  one  dies  seised  of  real  estate  incumbered  by  a 
mortgage,  the  land  descends  to  heirs  or  devisees  subject  to 
that  special  incumbrance ;  in  other  words,  the  equity  of  re- 
demption vests  in  them.  If  such  mortgage  be  afterwards 
foreclosed  and  the  land  sold,  any  surplus  on  the  sale  is 
regarded  as  realty,  and  goes  to  the  heirs  or  devisees  ;  and  the 
representative,  as  such,  cannot  regard  it  as  personal  assets 
nor  sue  to  recover  it,^  except  for  the  contingency  of  having 
to  sell  under  a  license,  as  already  noticed.     Generally,  when 

some  other    States  the  personal  repre-  representative  ;    neither  species  of  prop- 

sentative    is    expressly     authorized    by  erty,  however,    to  be   sold  without  an 

statute  to  collect  rents  and  take  control  order  of  the  probate    court.     Tate    v. 

of  the  real  estate  of  the  deceased  during  Norton,  94  U.  S.  Supr.  746;    Meeks  v. 

the  settlement  of  the  estate.     Kline  v.  Vassault,  3  Sawyer,  206.     In  Delaware, 

Moulton,   II    Mich.   370;    Wms.   Exrs.  too,  at  a   very  early  period    under   the 

821,  and  Perkins's  note.     This  does  not  proprietary    government,  .  the    common 

render    him   liable   to    account   to    the  law  was  changed  in  this  respect;   lands 

estate  for  such  rents.     Head  v.  Sutton,  were  made  liable  as  well  as  chattels  for 

31    Kan.   616.      And   see  McClead  v.  the  payment  of  debts,  and   they  might 

Davis,  83  Ind.  263.  be  taken  and  sold  on  execution  process, 

1  Aston's  Estate,  5  Whart.  228;  or  sold  by  executors  and  administrators 
Fromberger  v.  Greiner,  5  Whart.  350.  for  the  debts  of  their   decedents.     Vin- 

2  Drinkwater  i/.  Drinkwater,  4  Mass.  cent  w.  Piatt,  5  Harring.  164.  See  also 
354.  Jones  V.  Wightman,  2  Hill  (S.  C.)  579; 

8  Willis  V.  Smith,  65  Tex.  656.  Jennings  v.  Copeland,  90  N.  C.  572. 

*  Hoffman  v.   Wilding,   85  111.    453;  ^  Though  the  mortgage  provides  that 

sale   of  lands.  Part.  VI.,  c.  2,  post.     In  the  surplus  shall  be   paid   to  the   mort- 

Arkansas    and    some  other  States    the  gagor  or  "  his  executors   or   administra- 

law  is  that  the  real   as  well  as  the  per-  tors,"  this  is    the  true   construction    to 

sonal  estate   of  the  deceased  shall   be  place  upon  the  transaction.     Dunning 

treated  as  assets  in  the  hands   of  the  v.  Ocean  Nat.  Bank,   61    N.   Y.    497. 

288 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  215 

land  is  sold  for  a  specific  purpose  or  under  a  mortgage,  the 
surplus  money,  as  also  between  the  heirs  and  next  of  kin,  is 
considered  as  land  ;  but  after  it  has  once  vested  in  the  person 
entitled  to  it,  it  becomes  money,  and  on  his  death  passes  to 
his  own  representatives  as  personal  estate.^ 

As  for  the  mortgagee  of  real  estate,  such  mortgage  before 
foreclosure  is  only  security  in  his  hands  for  indebtedness  or 
a  liability,  and  equity  treats  it  as  a  chattel  interest,  which 
passes  to  the  e.xecutor  like  the  principal  cJwsc  in  action?  The 
same  doctrine  applies  to  the  assignee  of  a  mortgage.^  Where 
lands  mortgaged  to  the  deceased  are  taken  into  possession, 
and  foreclosed  after  his  death  by  his  executor  or  administra- 
tor for  breach  of  condition,  the  executor  or  administrator 
shall  hold  the  estate  until  his  functions  touching  it  are  fully 
performed,  or  until  distribution  ;^  and  such  property,  it  would 
appear,  is  to  be  held  and  dealt  with  like  other  personal  assets, 
this  being  its  character  when  the  representative's  title  vested 
by  reason  of  the  owner's  death. ^ 

§  215-  Rule  of  Assets  as  to  Lands  set  off  in  Execution. — 
Land  set  off  to  an  executor  or  administrator  upon  an  execu- 
tion recovered  by  him  on  a  debt  which  was  due  to  the 
deceased  personally,  appears  to  follow  the  same  rule  as  in 
the  representative's  foreclosure  of  a  mortgage.  The  right  of 
action,  in  other  words,  having  once  vested  in  the  representa- 
tive, whatever  may  be  realized  thereon  afterwards  goes  prop- 
erly as  assets  for  the  general  benefit  of  the  estate,  being  the 

And  see  Cox  v.    McBurney,  2  Sandf.  417;    Burton  v.    Hintrager,    18  Iowa, 

561.     Cf.   Heighway  v.  Pendleton,    15  348.      A  Welsh  mortgage  follows  this 

Ohio,     735.       So    where    heirs   of    the  rule.     Longuet  v.  Scawen,  i  Ves.  Sen. 

mortgagee   buy  in    the    land  at  a   fore-  406. 

closure  sale,    their  position  is  like  that  ^  Statutes   sometimes  emphasize   the 

of  an  ordinary    purchaser.     Johnson  v.  rule  of    the  text.      Mass.    Gen.    Stats. 

Patterson,  13  Lea,  626.  c.  96,  §  9. 

^  Sayers's   Appeal,  79  Penn.  St.  428;  *  Boylston  v.   Carver,  4  Mass.  598; 

Foster's    Apnf-al,     74    Penn.    St.    391;  Palmer  i'.  Stevens,  11  Cush.  148;  Terry 

Sweezv  w.  Willis  i    Bradf.  (N.  Y.)  495.  v.   Ferguson,    8  Port.  500;  Harper  v. 

2  Wms.   F.xrs.    687;    Tabor  v.  Tabor,  Archer,  28  Miss.  212;  Taft  -'.  Stevens, 

3  Swanst.  6^6;    Jones  and  other  general  3  Gray,  504. 

writers  on    Mortorages:    Chase  v.  Lock-  ^  Local   statutes  are  found  to  affirm 

erman.  11  Gill  X- T  rSt; :   Fav  z/.  Chenev,  this    rule.      Mass.    Gen.    Stats,    c.   96, 

14    Pick.   399;  Steel  v.  Steel,  4  Allen,  §§  9-12. 

289 


§217  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

result  of  a  prudent  pursuit  or  enforcement  of  that  right ;  and 
hence  the  real  estate  taken  on  execution,  or  its  proceeds,  will 
vest  in  the  representative  as  personal  assets,  to  be  paid  out 
or  distributed  eventually,  and  meanwhile  held  in  trust. ^ 

§  216.  Rents,  Profits,  and  Income  of  Real  Estate;  Rule  of 
Assets.  —  The  profits  and  income  of  real  estate,  incidental  to 
its  beneficial  enjoyment,  follow  by  operation  of  law  the  title 
to  the  premises.  The  rents  of  a  decedent's  lands  (not  being 
apportionable  at  common  law)  go  according  to  this  principle, 
in  the  absence  of  local  statutes  providing  for  apportionment. 
The  rents  accruing  previous  to  the  lessor's  death  belong  to 
his  personal  representative,  and  those  accruing  after  his  death 
to  the  heir  or  devisee.^ 

§  217.  Legal  Character  of  Property,  Real  or  Personal,  fixed 
at  Owner's  Death;  Rule  of  Equitable  Conversion.  —  In  general, 
so  far  as  executors  or  administrators  are  concerned,  the 
character  of  property,  whether  as  real  or  personal,  is  that 
impressed  upon  it  at  the  death  of  the  testate  or  intestate, 
and  does  not  change  by  any  subsequent  conversion  in  the 
course  of  administration.^  Indeed,  a  testator  cannot  alter 
the  legal  character  of  his  real  or  personal  property  by  direct- 
ing that  it  shall  be  considered  of  the  one  class  instead  of  the 
other.* 

In  equity,  however,  that  which  should  have  been  done  is 

1  Boylston  v.  Carver,  4  Mass.  598;  51  Miss.  475;  Crane  v.  Guthrie,  47 
Taft  V.  Stevens,  3  Gray,  504.  Local  Iowa,  542;  80  Ala.  388.  So,  too,  where 
statutes  confirm  this  rule.  Mass.  Gen.  rent  is  payable  in  kind.  Cobel  v.  Cobel, 
Stats,  c.  96,  §§  9-12;  Williamson  v.  8  Penn.  St.  342.  Except  as  to  payment 
Furbush,  31  Ark.  539.  in  crops  not  yet  ripe.      Wadsworth  v. 

2  Tayl.  Landl.  &  Ten.  §  390;  supra,  Allcott,  6  N.  Y.  64. 

§  213;   Peck  V.  IngersoU,  7  N.  Y.  528;  Accordingly,  the  executor  of  a  lessor 

Stinson  v.  Stinson,  38  Me.  593 ;  Spar-  may  distrain  for  arrears  of  rent  due  at 

hawk  V.  Allen,  25   N.  H.   261  ;  Gibson  the  time  of  the  testator's  death,  but  not 

V.  Farley,    16  Mass.  280 ;   Fay  v.  Hoi-  for    rent     which    shall    have    accrued 

loran,  35  Barb.  295;   Kohler  w.  Knapp,  subsequently.      Taylor    Landl.   &  Ten. 

I  Bradf.  241;   Robb's  Appeal,  41  Penn.  §  570. 

St.  45;  King  w.  Anderson,  20  Ind.  385  ;  »  Hamer   V.    Bethea.   11    S.    C.  416; 

Foltz  V.  Prouse,  17  111.  487:   Foteaux  v.  Rogers  v.  Paterson,  4  Paige,  409. 

Lepage.  6  Iowa,    123;  Smith  7'.  Bland,  *  Wms.  Exrs.  657;   Clay  v.  Willis,  i 

7  B.   Mnn.   21;   Fleming  v.  Chunn,   4  B.  &C.  364;  Johnson  z^.  Arnold,  I  Ves. 

Jones  Eq.  422;  Bloodworth  v.  Stevens,  171. 

290 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  -1/ 

treated  in  many  instances  as  actually  done ;  agreeably  to 
which  maxim,  money  is  often  to  be  regarded  as  land,  and 
land  as  money ;  though  the  principle  is  not,  apparently, 
pushed  to  the  extent  of  allowing  property  to  be  retained  in 
the  one  shape,  and  yet  devolve  in  title  as  though  it  were  of 
the  other.^  An  equitable  conversion  may  take  place,  there- 
fore, subsequently  to  the  testator's  death,  by  reason  of  direc- 
tions contained  in  the  will  itself  and  properly  executed. 
Such  conversion,  however,  is  not  favored,  nor  extended  upon 
inference.  Accordingly,  a  testator's  direction  to  convert  his 
real  estate  into  personalty,  for  specified  purposes,  must  be 
restricted  to  those  objects,  and  any  surplus  proceeds  after 
execution  of  the  power  will  go  as  realty  ;  ^  though,  should  it 
clearly  appear  that  the  testator  intended  an  absolute  conver- 
sion for  all  the  purposes  of  the  will,  the  proceeds  will  consti- 
tute assets  in  the  hands  of  the  executor,  for  the  payment  of 
legacies  as  well  as  of  debts  and  funeral  expenses.^  Again, 
there  may  be  a  constructive  conversion  of  real  into  personal, 
or  personal  into  real,  property,  at  the  time  of  the  testator's 
decease.^ 

In  the  administration  of  an  intestate  estate,  the  rule  of 
equitable  conversion  is  of  little  or  no  practical  consequence. 
But  in  administration  under  a  will  it  may  be  found  of  much 
importance.  In  the  latter  instance,  the  general  rule  deduci- 
ble  from  English  and  American  decisions  is,  that,  where  the 
will  shows  unequivocally  that  the  testator  meant  to  convert 
real  estate  into  personal,  the  law  will  consider  the  conversion 
as  actually  made  at  the  death  of  the  testator,  and  treat  the 
estate  as  personal  for  all  the  purposes  plainly  intended 
by  the  will.^     Conversely,  where  the  testator  shows  a  clear 

1  Wms.  Exrs.  659;  I  Jarm.  Wills,  3d  *  Hammond  v.  Putnam,  no  Mass. 
Eng.  ed.  551.  232,  and  cases  cited. 

2  Wms.  Exrs.  658;  Fletcher  v.  Ash-  ^  Johnson  v.  Woods,  2  Beav.  409; 
burner,  i  Bro.  C.  C.  497;  Hill  v.  Cock,  Collier  v.  Collier,  3  Ohio  St.  369;  Mor- 
I  Ves.  &  Bea.  173.  And  see  Foster's  ton,  J.,  in  Hammond  v.  Putnam,  no 
Appeal,  74  Penn.  St.  391 ;  Thomas,  Mass.  36;  i  Jarm.  Wills,  3d  Eng.  ed. 
Petition  of,  4  Thomp.  &  C.  (N.  V.)  410.  549;   Wms.  Exrs.  662,  Perkins's  note; 

8  Smith  V.  First    Presby.  Church,  26  Smith  v.  First  Presbv.  Church,  26  N.  J. 

N.  J.   Eq.   132;    Hammond  v.  Putnam,  Eq.  132;   Phelns  7a  Pond,  23  N.  Y.  6^! 

1 10   Mass.   235 ;    Phelps   v.    Pond,   23  Craig  v.  Leslie,  3  Wheat.  562. 
N.  Y.  69. 

291 


§  2l8  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

intention  that  personal  estate  should  be  converted  into  real, 
as  by  an  explicit  direction  that  certain  money  should  be  laid 
out  in  land  and  settled  on  A.  in  fee,  the  money  is  descen- 
dible at  once  upon  the  testator's  death,  with  the  usual  inci- 
dents of  real  estate  tenure.^  In  either  case,  the  death  of  the 
surviving  legatee  or  devisee,  before  an  actual  conversion 
takes  place,  and  before  the  administration  is  completed  and 
the  claims  of  creditors  disposed  of,  causes  a  devolution  of 
title  as  between  his  personal  or  real  representatives,  accord- 
ing to  the  character  impressed  upon  the  property  by  the  tes- 
tator's will.  But  an  intended  postponement,  or  an  option  or 
discretion  conferred  by  the  will  upon  the  executors,  should 
postpone  the  constructive  conversion  to  the  time  when  con- 
version, by  a  sale  or  otherwise,  actually  takes  place.^  There 
may  be  an  equitable  interest  in  land  which  passes  to  the 
executor  or  administrator  and  is  assignable  by  him.^ 

§  218.  Character  of  Property  at  Owner's  Death;  Instances; 
Contract   to    Sell ;  Land   Damages ;  Fire-Insurance   .Money,    etc. 

—  Where  a  deed  executed  by  the  vendor  of  real  estate  is  held 
by  some  third  person  as  an  escrow,  to  be  delivered  upon  the 
payment  of  an  unpaid  balance  of  the  purchase-money,  the 
death,  meantime,  of  the  vendor  will  cause  the  estate  to 
descend  to  the  heirs,  subject  to  the  vendee's  equitable  right 
to  a  conveyance.*  A  contract  for  the  sale  of  land  passes,  as  a 
beneficial  right  for  enforcement,  to  the  executor,  as  between 
him  and  the  heir  or  devisee,  for  it  is  personalty  ;^  while  the 
estate  to  the  land  vests,  in  equity,  in  the  vendee,  and  goes 
to  his  heirs,  and  not  to  the  personal  representative.^  Where 
a  testator  devises  land,  to  which  he  still  holds  the  legal  title, 
but  which  he  has  sold,  giving  to  the  purchaser  a  bond  for  a 
deed,  the  purchase-money,  when  paid  by  the  purchaser,  will 
belong  to  the  devisee.'^ 

1  Bramhall  v.  Ferris,  14  N.  Y.  41 ;  *  Teneick  v.  Flagg,  29  N.  J.  L.  25. 
Phelps  V.  Pond,  23  N.  Y.  69;  Dodson  Escrows  are  to  be  respected.  See  i  B. 
V.  Hay,  3  Bro.  C.  C.  404;    Wms.  Exrs.     &  Aid.  606. 

658,  and  Perkins's  note.  ^  Moore  v.  Burrows,  34  Barb.  173. 

2  Bective  v.  Hodgson,  10  H.  L.  Cas.  ^  lb.;  Champion  v.  Brown,  6  Joha 
667;  De  Beauvoir,  Re,  3  H.  L.  Cas.  524.     Ch.  398. 

'Atkison  v.  Henry,  80  Mo.  670.  '  Wright  v.  Minshall,  72  111.  584. 

292 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §219 

Damages  assessed  in  favor  of  land  taken  for  public  uses, 
before  the  owner's  death,  though  not  made  payable  until 
after  his  death,  pass  as  assets  to  the  executor  or  adminis- 
trator ;  but  otherwise,  if  the  land  was  not  taken  until  after 
the  owner's  death. ^  So,  if  a  person  sells  real  estate  and  dies 
afterwards,  that  portion  of  the  purchase-money  which  re- 
mains unpaid  must  be  treated  as  personal  property  and 
assets,  however  the  same  may  have  been  secured.^ 

Insurance  money  paid  to  the  heirs  on  a  fire  insurance  of 
the  decedent's  real  estate,  the  buildings  being  burned  after 
his  death,  vests  in  the  heirs,  like  the  realty,  and  constitutes 
no  part  of  the  ordinary  personal  assets  of  the  deceased. ^ 
But  if  the  buildings  were  burned  while  the  decedent  was 
alive,  any  claim  for  unpaid  insurance  money  should,  on  prin- 
ciple, constitute  assets  for  the  personal  representative  to 
collect  and  administer  upon. 

§  2 1 9.  Gifts  Causa  Mortis,  etc.,  as  affecting  Question  of  Assets. 

—  A  gift  of  personal  property  causa  mortis,  which  differs  from 
ordinary  gifts  in  being  made  with  an  anticipation  of  imminent 
death,  and  constituting  a  sort  of  ambulatory  disposition  by 
delivery,  without  the  essential  formalities  of  a  will,  carries 
two  distinct  consequences,  when  fully  executed  and  followed 
by  the  donor's  death  :  one  with  respect  to  the  donee  himself, 
the  other  as  concerns  creditors  of  the  estate.  As  concerns 
the  donee,  his  title  is  derived  directly  from  the  donor  and  not 
from  the  donor's  executor  or  administrator ;  consequently, 
the  assent  of  such  representative  after  the  donor's  death  is 
not  in  any  way  essential  to  the  donee's  title,  nor  has  the  ex- 
ecutor or  administrator  any  claim  whatever  upon  the  property 
for  the  ordinary  purposes  of  administration  and  the  claims  of 

1  Astor  V.  Hoyt,  5  Wend.  603;  sold  under  proceedings  in  partition,  such 
Welles  V.  Cowles,  4  Conn.  182;  Good-  interest  being  vested,  is  not  real  but 
win  V.  Milton,  25  N.  H.  458;  Neal  v.  personal  estate.  Jacobus  ».  Jacobus,  37 
Knox  R.  Co.,  61  Me.  298.  N.  J.  Eq.  17. 

2  Loring  v.  Cunningham,  9  Cush.  87;  »  Wyman  v.  Wyman,  26  N.  Y.  253; 
Henson  v.  Ott,  7  Ind.  512;  Everit,  Harrison  v.  Harrison,  4  Leigh,  371. 
Matter  of,  2  Edw.  597 ;  Sutter  v.  Ling,  As  to  owners  subject  to  life  estate,  see 
25    Penn.    St.    466.      Where    one   dies  42  Hun  (N.  Y.)  423. 

having  an  interest  in  mortgaged  land 

293 


§  220  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

distributees.^  At  the  same  time  the  e.xecutor  or  administra- 
tor of  an  alleged  donor  has  corresponding  rights  against  all 
persons  retaining  property  of  the  deceased  under  the  fictitious 
claim  of  donees  causa  mortis,  and  it  is  his  duty  to  dispossess 
them.2  But  with  regard  to  the  donor's  creditors,  the  uni- 
versal principle  is,  as  in  the  case  of  gifts  viier  vivos,  that  the 
transfer  shall  not  be  allowed  to  defeat  the  just  claims  of 
creditors  ;  ^  and  accordingly,  upon  an  utter  deficiency  of  assets 
to  pay  the  lawful  claims  of  creditors,  any  gift  causa  tnortis 
must  give  way  so  far  as  may  be  requisite  to  discharge  lawful 
demands.* 

§  220.  Assignment,  Gift,  or  Transfer  by  the  Decedent,  to  be 
avoided  if  Fraudulent  as  against  his  Creditors. — Any  gift,  as- 
signment, conveyance,  or  transfer  of  property  within  the 
statute  13  Eliz.  c.  5,  and  analogous  legislation,  is  void  against 
creditors  ;  and,  consequently,  it  becomes  the  duty  of  a  personal 
representative  to  procure  the  property  by  instituting,  on  their 
behalf,  appropriate  proceedings,  considering  the  means  of 
litigation  at  his  disposal  and  the  proof  obtainable.^  So,  too, 
the  personal  representative  may  and  should  resist  the  col- 
lection of  a  note  or  demand  against  the  estate,  grounded  upon 
a  fraudulent  transfer  by  the  deceased.^     Generally  speaking, 

1  2  Schoul.  Pers.  Prop.  179,  180;  the  executor  or  administrator  as  assets. 
Gaunt  V.  Tucker,  18  Ala.  27;  Michener  Gilman  v.  McArdle,  12  Abb.  N.  Cas. 
V.  Dale,  23  Penn.  St.  59;   Westerlo  v.     414. 

De  Witt,  36  N.  Y.  340.  See  Wads-  *  Wms.  Exrs.  1679,  and  note  by 
worth  V.  Chick,  55  Tex.  241.  Perkins;  Martin  v.  Root,  17  Mass.  222; 

2  Egerton  v.  Egerton,  17  N.  J.  Eq.  Preston  v.  Cutter  (N.  H.).  It  has 
419.  sometimes  been   disputed    whether  the 

^  2  Bl.  Com.  514;   2  Kent  Com.  448;  executor  or   administrator  of   an  insol- 

Dig.  39,  6,   17;   2  Schoul.  Pers.  Prop,  vent  donor  can  set  aside  the  gift;   but 

180.  it  is  clear  that  the  creditors  can  pursue 

*  Drury  v.   Smith,   i    P.   Wms.  406 ;  their  own  remedies,  in  which  case  the 

Ward    V.   Turner,    2    Ves.    Sen.    434 ;  personal  representative  of  the  deceased 

Michener   v.   Dale,    23    Penn.    St.   59 ;  is  a  proper  party,  so  that  the  property 

Chase  I'.  Redding,  13  Gray,  418;  Borne-  when  recovered  may  go  in  a  course  of 

man  v.   Sidlinger,    15   Me.  429.      The  administration.      I  Am.  Lead.  Cas.  43; 

general  topic  ofgifts  (-«?««  wo;/?.?,  is  fully  2    Schoul.    Pers    Prop.    II2;     Blake  v. 

treated   in    2  Schoul.   Pers.  Prop.   122-  Blake,  53  Miss.  183. 
182.      And   see   Wms.    Exrs.    770-783.         ^  Cross   v.    Brown,    51    N.    H.   486; 

A  deposit  of  personaltv  in    one's   life,  Welsh   v.  Welsh,   loq  Mass.  229.     See, 

which  is  purelv  ambulatorv  and  creates  also,  Gilman  v.  McArdle,  99  N.  Y.  451. 
no  valid  trust  by  way  of  gift  belongs  to 

294 


CHAP.  I.]  ASSETS  OF    AN    ESTATE.  §  22  1 

property  which  has  been  assigned  or  conveyed  by  the  de- 
ceased, after  the  manner  of  a  gift,  confers  a  title  upon  the 
donee  or  grantee,  subject  to  the  demands  of  prior  existing 
creditors  of  the  estate.  The  executor  or  administrator,  rep- 
resenting these  and  other  interests  against  the  express  or 
implied  wishes  of  the  deceased  himself,  if  need  be,  may  pro- 
cure all  assets  suitable  for  discharging  demands  of  this 
character.  But  if  any  balance  is  left  over,  it  goes,  not  to  the 
next  of  kin,  but  to  the  donee ;  for  the  revocation  of  any  gift 
for  the  benefit  of  creditors  of  the  decedent  is  ox\\y  pro  tajito} 
The  personal  representative's  right  and  duty  to  have  a 
fraudulent  transfer  set  aside,  may  extend  to  proceedings  by 
bill  in  equity  to  reach  real  estate  thus  fraudulently  conveyed ; 
so  far,  at  least,  as  the  interests  of  creditors  may  require  real 
property  to  be  reached  for  the  satisfaction  of  debts  and  the 
fulfilment  of  the  duties  of  administration,  without  conflicting 
with  the  main  principle  upon  which  voluntary  conveyances 
are  treated,  as  within  the  statute  prohibition  above  referred 
to  ;  and  subject,  of  course,  to  the  rule  which  exhausts  the 
personal  assets  first. ^  Questions  of  this  character  properly 
concern  the  settlement  of  the  estates  of  those  who  die  in- 
solvent. 

§  22 1.    Equitable  Assets  as  distinguished  from  Legal  Assets.  — 

The  English  law  of  administration  has  taken  some  pains  to 
discriminate  between  legal  assets  and  equitable  assets  of  an 
estate  ;  referring  to  the  latter  head,  such  assets  as  are  liable 
only  by  the  help  of  a  court  of  equity,  and  not  recognized  as 
assets  at  law.     The  point  of  the  distinction  lies  in  this  :  that 

1  McLean   v.  Weeks,    6l    Me.    277;  the  decedent  in  fraud  of  his  creditors, 

Abbott  V.  'Penney,  18  N.  II.  109;  Reade  is  cognizable  at  law.     Doe  v.  Clark,  42 

V.    Livingston,    3   Johns.    Ch,    481  ;    2  Iowa,  123.     Our  local  practice,  in  other 

Schoul.  Pers.  Prop.  112,  113;  Burtch  v.  words,  as  to  gifts  inter  vivos  follows  the 

Elliot,    3   Ind.    100.      But  the  expenses  course    so    frequent    in    the    essentially 

of  administration  should  be  defrayed  out  distinct    case    of  a    gift    causa    mortis, 

of  the  fund  before  the  donee  can  claim  namely,  to  permit  the  executor  or  ad- 

a  balance.     McLean  v.  Weeks,  supra,  ministrator,  as  quasi  representative  of 

Bassett    v.    McKenna,   52    Conn.   437.  the  creditors,  to  recover  the  property  or 

An  action  hv  a  representative,  to  recover  its  value  to  the  extent  requisite.     lb. 

money  alleged  to  have  been  obtained  2  Wms.  Exrs.  1679,  16S0;  3  B.  &  Ad 

under  a  lease  assigned  the  defendant  by  362. 

295 


§  221  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

courts  of  equity  disapprove  those  rules  of  priority  among 
creditors  which  were  early  established  by  the  common-law 
tribunal,  and  ranked  all  debts  alike,  whether  founded  in 
specialty  or  simple  contract,  this  being  most  consonant  to 
natural  justice.^  To  stretch  judicial  power  arbitrarily,  how- 
ever, in  order  to  further  ends  which  it  lies  rather  within  the 
province  of  legislation  to  accomplish,  is  incompatible  with 
American  rules  of  procedure ;  and  American  courts  of  equity 
rarely,  if  ever,  enforce  such  a  distinction  ;  the  old  rules  of 
priority  having,  instead,  been  altered  by  suitable  enactments 
in  most  parts  of  the  United  States,  or  else  rendered  as  toler- 
able as  possible  by  being  administered  with  uniformity.^  In 
England,  moreover,  the  chancery  courts  appear  to  have 
abated  some  of  their  former  pretensions  in  this  respect,  by 
conceding  latterly,  though  not  without  reluctance,  that  an 
equity  of  redemption  in  chattels,  real  or  personal,  constitutes 
assets  at  law  in  the  hands  of  the  executor  or  administrator 
for  whatever  it  is  worth  over  and  above  the  security  ;  ^  or  in 
other  words,  that  whatever  devolves  in  title  upon,  the  execu- 
tor or  administrator,  by  virtue  of  his  office,  shall  be  treated  as 
legal  assets.*  But  with  regard  to  such  property  of  the  de- 
ceased as  consists  of  the  proceeds  of  the  sale  of  real  estate, 
the  English  rule  appears  to  settle  that  such  proceeds  are 
equitable  and  not  legal  assets ;  though  there  has  been  some 
question  whether  devises  of  land  to  executors  for  sale,  or  the 
payment  of  debts  and  legacies,  impress  the  proceeds  with  the 
character  of  equitable  assets.^  It  is  ruled  conformably  to 
the  main  distinction,  that,  where  assets  are  partly  legal  and 
partly  equitable,  equity  cannot  take  away  the  legal  preference 
on  legal  assets,  and  yet  may  postpone  a  creditor  who  has 

1  Wms.  Exrs,  1680- 1685.  1682;     Cook     v.     Gregson,     20    Jur. 

2  See  §  417  as  to  payment  of  debts;     510. 

Sperry,  Estate  of,  i  Ashm.  347.  ^  Clay  v.  Willis,  i  B.  &  C.  364;    Bain 

8  Wms.  Exrs.  1682;    Sharpe  v.  Scar-  v.  Sadler,  L.  R.  12  Eq.  570.  Wms.  Exrs. 

borough,  4  Ves.  541;   Wison  v.  Field-  1684.      Contra,  Girling  v.  Lee,   i  Vern. 

ing,  2  Vern.  763.     Contra,  Cox,  Credi-  63.     A  debt  for  money  loaned  by  the 

tors    of,  3  P.    Wms.   342;    Hartwell  v.  representative  under  a  power  in  the  will 

Chitters.  Ambl.  308.  secured  by  mortgage  of  real  estate  is  in 

*  Story  Eq.  Jur.  §  551;   Wms.  Exrs.  equity  regarded  as  personal  assets.    Dun- 
ham V.  Milhouse,  70  Ala.  596. 

296 


CHAP.  I.] 


ASSETS    OF    AN    ESTATE. 


§  222 


been  partly  paid  out  of  the  legal  assets,  so  as  to  make  an 
equal  satisfaction  out  of  the  equitable  assets  for  all  the  credi- 
tors.^ In  the  United  States,  and  apparently  in  England,  also, 
the  better  rule  is  that  a  right  of  equity  of  redemption  in 
property,  real  or  personal,  should  be  treated  as  assets  avail- 
able, like  any  other  legal  assets  of  the  estate  ;  ^  if,  indeed,  the 
distinction  between  legal  and  equitable  assets  be  tenable 
at  all. 

§  222.  Assets  where  Property  is  appointed  under  a  Power.  — 
Where  a  person  has  a  general  power  of  appointment,  either 
by  deed  or  by  will,  and  executes  that  power,  the  property 
appointed  is  deemed  in  equity  part  of  his  assets,  and  rendered 
subject  to  the  demands  of  his  creditors  in  preference  to  the 
claims  of  his  voluntary  appointees  or  legatees.^ 


1  Chapman  v.  Esgar,  i  Sm.  &  G.  575. 

2  4  Kent  Com.  162  ;  Cook  v.  Gregson, 
20  Jur.  510,  per  Kindersley,  V.  C.  Such, 
after  all,  is  the  judicial  inclination  not 
to  violate  general  rules  for  the  settle- 
ment of  estates,  that  later  English  chan- 
cery cases  appear  compelled  to  draw 
the  distinction  between  legal  and  equi- 
table assets  into  a  fine  thread.  Thus, 
Kindersley,  V.  C,  observes,  in  Shee  v. 
French  (3  Drew.  716),  that  the  question 
whether  assets  are  legal  or  equitable 
depends  on  this :  whether,  if  the  case 
were  before  a  court  of  law,  on  an  issue 
oi plene  administravit,  that  court  would 
treat  the  property  as  assets;  for  the 
principle  on  which  a  court  of  law  pro- 
ceeds is  to  inquire  whether  the  property 
came  to  the  hands  of  the  executor  vir- 


away  the  estate.  Thompson  v.  Towne, 
Prec.  Ch.  52;  s.  c.  2  Vern.  319.  But 
Lord  Hardwicke  repeatedly  applied  it 
to  cases  of  the  execution  of  a  general 
power  of  appointment  by  will  of  prop- 
erty of  which  the  donee  had  never  had 
any  ownership  or  control  during  his 
life;  and  while  recognizing  the  logical 
difficulty  that  the  power,  when  executed, 
took  effect  as  an  appointment,  not  of 
the  testator's  own  assets,  but  of  the 
estate  of  the  donor  of  the  power,  said 
that  the  previous  cases  before  Lord  Tal- 
bot and  himself  (of  which  very  meagre 
and  imperfect  reports  have  come  down 
to  us)  had  established  the  doctrine,  that 
when  there  was  a  general  power  of  ap- 
pointment, which  it  was  absolutely  in 
the  donee's  pleasure  to  execute  or  not. 


iute  officii;  if  it   did,   the  court  of  law     he  might  do  it   for  any  purpose  what- 


regards  it  as  assets  applicable  to  the 
payment  of  the  testator's  debts,  and 
then  the  court  of  equity  treats  it  as 
legal  assets. 

'"The  rule  perhaps  had   its  origin," 


ever,  and  might  appoint  the  money  to 
be  paid  to  his  executors  if  he  pleased, 
and,  if  he  executed  it  voluntarily  and 
without  consideration  for  the  benefit  of 
third  persons,  the  money  should  be  con- 


observes  Gray,  C.  J.,  in  a  recent  Massa-     sidered  part  of  his  assets,  and  his  cred- 


chusetts  case,  "  in  a  decree  of  Lord 
Somers,  affirmed  by  the  House  of 
Lords,  in  a  case  in  which  the  person 
executing  the  power  had  in  effect  re- 
served the  power  to  himself  in  granting 


itors  should  have  the  benefit  of  it." 
Clapp  V.  Ingrahnm,  126  Mass.  200,  202, 
citing  Townshend  v.  Windham,  2  Ves. 
Sen.  I;  Caswall,  Ex  parte,  I  Atk.  559, 
560;  Pack  V.  Bathust,  3  Atk.  269.   "The 


297 


§  223  EXECUTORS    AND    ADMINISTRATORS.  [pART  III. 

§  223.  Chattels  Real  as  Assets  ;  Leases,  etc.  —  Inasmuch  as 
the  personal  but  not  the  real  estate  of  the  decedent  vests  as 
assets  in  his  executor  or  administrator,  a  clear  idea  should  be 
retained  of  the  peculiar  discrimination  which  our  common  law 
makes  between  these  two  grand  classes  of  property.  Mobility 
and  immobility  appear  to  be  the  fundamental  test  in  all  sys- 
tems of  jurisprudence ;  but  at  the  common  law  there  was  the 
freehold  estate  in  lands,  which  might  be  either  one  of  inheri- 
tance or  for  life,  while  to  all  inferior  interests  and  movables 
proper  was  applied  the  term  "  chattel  "  ;  so  that  personal 
property  at  our  law  has  been  essentially  property  the  resid- 
uum of  the  freehold,  and  divided  into  chattels  real  and  chattels 
personal.^  Chattels  real  vest  consequently  in  the  executor  or 
administrator  of  the  lessee,  whether  as  a  valuable  beneficial 
and  assignable  interest,  which  may  be  disposed  of  at  a 
profit,  or  as  involving  rather  a  burdensome  obligation  to 
be  discharged  out  of  the  decedent's  estate.  Of  chattels 
real  the  only  important  one  in  modern  times  is  the  lease.^ 
The  good-will  of  an  established  business  and  a  lease- 
hold interest  go  often  together  as  valuable  assets.^     So,  too, 


doctrine,"  adds  Gray,  C.  J.,  "  has  been  111.  55.     Chattels  personal,  upon  which 

upheld  to  the  full  extent  in  England  the  term  "  personal  property  "  is  more 

ever   since."      lb.,    citing    Fleming   v.  commonly  bestowed,  have  already  been 

Buchanan,  3  De  G.   M.  &  G.  976;   2  considered.    See,  also,  as  to  the  English 

Sugd.  Powers,  7th  ed.  27.  Although  the  attendant  terms  of  years,  mortgaged  for 

soundness  of  the  reasons  on  which  the  family    trust    arrangements,    I    Schoul. 

doctrine  rests  has  since  been  inpugned  Pers.  Prop.  71.     The  assignee  of  a  les- 

arguendo  by  Gibson,  C.  J.,  and  doubted  see  for  life  holds  an   estate  pur  auter 

by  Mr.    Justice    Story   (see    Story    Eq.  vie,  which,  by  our  statute,  is  a  freehold 

Jur.  §  176,  and  note),  it  has  been  con-  during  the  assignee's   life  ;    but  on  his 

sidered  well  settled  in  the  United  States,  death   a   chattel  real  and  assets  in  the 

Clapp    V.    Ingraham,    supra;    4     Kent  hands    of    his    administrator.      Mosher 

Com.   339,  340;    Johnson  v.  Gushing,  v.  Youst,  33  Barb.  277.     An  estate  for 

15  N.  H.  298;   Commonwealth  v.  Duf-  another's   life,    which   at   common    law 

field,  12  Penn.  St.  277,  279-281.     See,  fell  on  the  grantee's  death  to  the  first 

also,  Wms.  Exrs.  1686.  person  who  could  get  it,  is  affected  by 

1  I  Schoul.  Pers.  Prop.  29,  30;  2  Bl.  stat.  29  Car.  II.  c.  3,  §  12,  which  favored 
Com.  385,  386;   Wms.  Exrs.  670-690.  treating    it    as  assets  of    the    grantee's 

2  Murdock  v.  Ratcliff,  7  Ohio,  119;  estate.  It  may  be  disposed  of  by  will, 
Wms.  Exrs.  674;  i  Schoul.  Pers.  Prop,  however,  under  stat.  i  Vict.  c.  26,  §  3. 
45,  73;   Lewis  V.  Ringo,  3  A.  K.  Marsh.  See  Wms.  Exrs.  681,  682. 

(Ky.)  247;  Thornton  v.  Mehring,  117        ^  Wiley's  Appeal,  8  W.  &  S.  244. 

298 


CHAP.   I.]  ASSETS    OF    AK    ESTATE.  §   22$ 

the  good-will  of  a  renewal  of  the  lease  should,  if  valuable,  be 
included.^  As  assets,  leases  have,  however,  peculiar  incidents. 
Rent  may  issue  out  of  lands  and  tenements,  or  it  may  be 
paid  in  consideration  of  real  and  personal  property  blended, 
as  where  a  furnished  house  is  let.^  If  the  administrator  of  a 
deceased  tenant  takes  possession  of  a  leased  estate  and  con- 
tinues on  under  the  terms  of  the  lease,  the  profits  of  the  land, 
it  is  said,  are  first  liable  for  the  payment  of  the  rent,  and  only 
what  remains  can  constitute  assets  of  the  estate.'^  This  rule 
appears  an  equitable  one.  But  under  the  New  York  statutes 
it  is  held  that  where  one  dies  holding  leases  upon  which 
arrears  of  rent  are  due,  and  there  were  also  certain  sums  due 
him  for  storage  of  goods  on  the  leased  premises,  assets 
exist  to  be  applied  among  creditors  without  any  preference 
in  favor  of  the  lessor.* 

§  224.  Chattels  ■which  come  by  Remainder  as  Assets.  —  Chat- 
tels which  never  vested  in  possession  in  the  testator  may 
nevertheless  come  to  his  executor  by  remainder  as  assets  ; 
as  if  a  lease  should  run  to  A.  for  life,  with  remainder  to  his 
executor  for  years.^ 

§  225.  Things  on  the  Border-Line  of  Real  and  Personal;  Rule 
of  Assets  applied  to  Heirlooms.  —  Finally  we  come  to  things 
at  the  border-line  which  separates  real  estate  and  personal  or 

1  Green  v.   Green,   2   Redf.    (N.  Y.)  culiar  rights  and  liabilities  of  the  per- 

408.      Where  a  lessee  hired  premises  by  sonal   representative   with  reference  to 

parol   agreement,  a  lease  being  drawn  chattels  real. 

up  but  not  signed,  and  entered  before  "  The  cases  on  the  subject  of  a  lease 

his  death,  and   made  valuable   improve-  devolving  on  an  executor,  where  the  rent 

ments,  the  lease  is  enforceable  in  equity,  reserved  exceeds  the  value  of  the  prem- 

and  should  therefore  be  deemed  an  asset  ises,  are  involved  in  some  difficulty.     I 

for  the  whole  term.     lb.  think,  however,  upon  the  authorities,  as 

A   lease    for   ninety-nine    years   is   a  well   as   on   principle,  that,  where   the 

chattel    real     (in     absence    of    statute  rent  reserved  exceeds  the  value  of  the 

changes),  and  constitutes,  on  the  lessee's  premises,  an  executor,  in  the  character 

death,  assets  for   administration.     Faler  of  assignee,  is  liable  to  the  extent  of  such 

V.  McRae,  56  Miss.  227.  value;  and,  where  the  value  exceeds  the 

■•2  Mickle  V.  Miles,  i  Grant  (Pa.)  320,  rent   reserved,    to    the    extent   of  such 

328,  per  Lowrie,  J.     See  supra,  §  216,  rent."     Mr.  Justice    Maule  in  6  C.  B. 

as  to  rent.  756;  Bowes,  Re,  37  Ch.  D.  128. 

8  Mickle  V.  Miles,  i  Grant  (Pa.)  320.  *  Com.  Dig.  Assets  C ;   Wms.  Exrs 

*  Harris    v.   Mever,  3  Redf.   (N.  Y.)  1658. 
450.     See  post,  Part  IV.,  as  to  the  pe- 

299 


§  226  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

chattel  property  at  the  common  law.  The  three  classes  here 
noticeable  are  (i)  heirlooms,  (2)  emblements,  and  (3)  fixtures. 
Heirlooms  are  not  favored  in  American  law ;  and  so  far 
as  such  things  cannot  be  treated  as  strict  fixtures,  their  title 
seems  to  have  been  excepted  from  the  ordinary  rules  of  devo- 
lution upon  death,  out  of  favor  to  the  heir,  in  accordance  with 
some  local  custom  which  gratified  family  pride. ^  The  armor 
and  insignia  of  an  ancestor,  family  portraits,  crown  jewels, 
and  the  like,  came  within  the  principle  of  this  exception. 
According  to  Coke,  articles  of  less  dignity,  like  the  best  bed, 
table,  pot,  pan,  and  cart,  might  go  in  this  manner ;  and  out 
of  regard  to  a  sort  of  connection  with  the  freehold,  if  not 
annexation,  which  they  bore,  keys,  title-deeds,  and  other 
muniments  of  the  inheritance,  together  with  the  chest  con- 
taining them,  went  also  to  the  heir.^  To  all  this  curious 
learning  American  courts  pay  little  heed ;  but  whatever  may 
be  pronounced  heirlooms  go  with  real  estate  to  the  heir,  and 
the  executor  or  administrator  cannot  treat  them  as  assets 
more  than  the  real  estate  itself.  Indeed,  it  is  *held  that 
though  the  owner  might  have  disposed  during  life  of  chattels 
which  would  otherwise  descend  as  heirlooms,  he  cannot  de- 
vise or  bequeath  them  by  his  will,  but  they  shall  vest  in  the 
heir  on  the  instant  of  the  donee's  death. ^ 

§  226.  Rule  of  Assets  applied  to  Emblements.  —  Next,  as  to 
".emblements,"  a  word  associated  with  chattels  vegetable  and 
growing  crops.  Here  the  rule  is,  that  when  the  owner  of 
real  estate  dies,  trees  and  their  fruit  and  produce,  if  hanging 
on  the  trees  at  the  time  of  his  death,  also  hedges  and  bushes, 
go  to  the  heirs  and  not  to  the  executor  or  administrator ;  the 
reason  being  that  they  are  part  of  the  real  estate  and  not 
chattels.*     But  out  of  favor  to  agriculture,  and  to  aid  the 

^  I    Schoul.  Pers.  Prop.   117;    2   Bl.  i   Schoul.  Pers.  Prop.    118.     The  topic 

Com.  427;  Wnis.  Pers.  Prop.  5th  Eng.  of  heirlooms  is  discussed  at  length  in 

ed.  12.  I  Schoul.  Pers.  Prop.  1 17-123. 

2  lb.;  Co.  Lit.  18  b;  Upton  v.  Lord  *  i  Schoul.  Pers.  Prop.  125;  Swinb. 
Ferrers,  5  Ves.  806;  Harrington  v.  pt.  7,  §  10,  pi.  8;  Wms.  Exrs.  707; 
Price,  3  B.  &  A.  170;  Allwood  v.  Hey-  Rodwell  v.  Phillips,  9  M.  &  W.  501; 
wood,  II  W.  R.  291.  Maples  v.  Milton,  31  Conn.  598. 

3  Tipping  V.  Tipping,  I  P.  Wms.  730; 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  226 

intentions  of  one  who  has  bestowed  labor  upon  a  crop  which 
by  reason  of  some  unforeseen  contingency  beyond  his  con- 
trol, the  unsevered  property  is  sometimes  treated  as  though 
already  severed ;  a  rule  which  obtains  with  much  force  as 
between  tenant  and  landlord,  where  the  tenancy  has  suddenly 
determined  by  act  of  God  or  the  act  of  the  law.^  If  an  owner 
sows  his  land,  and  then  conveys  it  away,  he  passes  the  title 
to  growing  crops  as  well  as  the  soil,  and  his  executors  and 
administrators  have  no  concern  in  either.^  So,  too,  one's 
devise  of  land  carries  presumptively  the  growing  crops.^ 
Crops  of  the  year  not  actually  sown  or  planted  by  the  dece- 
dent do  not  come  within  the  benefit  of  the  rule  of  emble- 
ments ;  *  nor,  as  a  rule,  growing  clover  or  grass,  which  is  a 
natural  product  of  the  soil  renewed  from  year  to  year.^ 

But  as  to  grain,  corn,  potatoes,  or  any  other  product  of  the 
soil  which  is  raised  annually  by  labor  and  cultivation,  and 
returns  periodical  profit  only  by  periodical  planting,  the  labor 
bestowed  affords  reason,  on  the  casualty  of  death  happening, 
for  application  of  the  rule  of  emblements  ;  hence,  such  grow- 
ing crop  of  a  decedent  goes  as  personal  assets  to  his  executor 
or  administrator,  and  not  with  the  title  to  the  land.*^  But 
with  crops  planted  and  grown  after  the  death  of  the  owner, 
administration  has  nothing  to  do.'^ 

Where  one  grants  away  trees  growing  on  the  soil,  they  go 
to  the  grantee's  executor  or  administrator  whether  felled  or 

^l  Washb.  Real  Prop.  lO/^  et  seq. ;  i  Humphrey    v.    Merritt,    51     Ind.    197; 

Schoul.  Pars.  Prop.  128-134.  Wadsvvorth  v.    AUcott,    6    N.    Y.    64; 

2  I  Schoul.  Pers.  Prop.  130;  i  Washb.  Thornton  v.  Burch,  20  Ga.  791;  Single- 
Real  Prop.  104;  Foote  v.  Colvin,  3  ton  v.  Singleton,  5  Dana,  92;  Wms. 
Johns.  216.  Exrs.  711;   Evans  v.  Roberts,  5  B.  &  C. 

8  Shofner   v.  Shofner,  5   Sneed,  94;  832;   Gwin   v.  Hicks,    i    Bay    (S.    C.) 

Fetrow    v.  Fetrow,    50    Penn.   St.  253.  503.     Local  statutes  are  found  on  this 

As  to   crops    growing   on   a   household  subject.       Green    v.    Cutright,     Wright 

farm,  see  Budd  v.  Hiler,  27  N.  J.  L.  43.  (Ohio)   738;   Thompson  r/.  Thompson, 

*  Gee  V.  Young,  i  Hayw.  (N.  C.)  17;  6  Munf.  514.  While  an  administrator 
Rodman  v.  Rodman,  54  Ind.  444.  may  gather  the  crop  of  the  intestate,  he 

^  Kain  v.  Fisher,  6  N.  Y.  597;   Evans  is  not  obliged  to  do  so,  and  if  he  does 

V.  Inglehart,  6  Gill  &  J.  188;  i  Schoul.  not  it  is  not  assets;  and  if  the  widow 

Pers.  Prop.  128.     And  this  rule  appears  gathers  it,  it  is  hers  as  against  the  ad- 

rigidly  to  apply  even  though  the  natural  ministrator.     Blair  v.  Murphree,  81  Ala. 

product  be  increased  by  actual  cultiva-  454.     If  he  gathers,   he  must    account 

tion.     lb.     But  see  Wms.  Exrs.  712.  strictly.     Perkins  ?'.  Sturdivant  (Miss.). 

•  Penhallow  v.  D wight,  7  Mass.  34;        '  Kidwell  v.  Kidwell,  84  Ind.  224. 

301 


§   22/  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

not  ;  and  where  one  grants  land  with  express  reservation  of 
the  trees,  the  trees  go  to  the  grantor's  executor  or  adminis- 
trator ;  for  under  these  peculiar  circumstances  the  grant  itself 
makes  a  constructive  severance,  so  as  to  render  the  trees 
transmissible  as  personal  property.^ 

§  227.    Rule  of  Assets  applied  to  Fixtures.  —  Of  these  mixed 

things,  the  most  important  class  at  the  present  day  is  that  of 
"  fixtures  "  ;  the  very  word,  now  so  common  in  legal  parlance, 
being  of  modern  origin  and  variously  defined,  but,  on  the 
whole,  signifying  chattels  annexed  in  a  manner  to  the  ground, 
concerning  which  the  right  to  remove  comes  in  controversy. 
The  object  and  purpose  of  the  annexation  must  be  considered 
in  all  cases  of  fixtures  ;  and  the  law  is  more  or  less  liberal, 
according  as  it  appears  that  the  chattel  was  affixed  for  pur- 
poses of  trade,  for  purposes  of  ornament,  or  for  domestic 
purposes.  In  order  to  constitute  annexation  within  the  rule 
of  fixtures,  the  article  in  question  must  have  been  let  into  or 
united  with  the  land  or  to  substances  previously  connected 
with  it  ;  for  mere  juxtaposition,  such  as  laying  a  pile  of 
lumber  on  the  ground,  leaves  the  lumber  mere  personal 
property.^  Chattels  lying  on  the  ground,  at  the  death  of  the 
owner,  vest,  of  course,  in  his  executors  and  administrators  as 
personal  assets ;  while  the  land  itself,  and  permanent  erec- 
tions thereon,  go  to  the  heir  or  devisee.  But  annexation  is 
not  a  conclusive  test  ;  since  there  are  things,  such  as  doors, 
blinds,  and  shutters,  which  pass  with  the  soil  or  buildings, 
from  regard  to  their  own  nature  and  adaption  to  the  purpose 
for  which  they  have  been  used,  though  so  slightly  annexed  as 
to  be  easily  removed  ;  and  on  the  other  hand,  heavy  articles 
like  mirrors,  pictures,  and  wardrobes,  fastened  into  the  wall, 
which,  out  of  corresponding  regard,  are  to  be  treated  still  as 
chattels.^     Various  considerations  are  to  be  applied  in  deter- 

1  Hob.  173;  4  Co.  63  b;  Wms.  Exrs.  Cas.,  Am.  Notes,  228;  Wms.  Exrs.  728 
708.  Cotitra  if  the  grantee  of  trees  et  seq.  Rails  in  stacks  are  personal 
should  unite  thereto  the  purchase  of  the  property,  and  the  title  vests  in  the  per- 
land,  and  not  cut  the  trees.    4  Co.  63  b.  sonal    representative    of    the    deceased. 

2  I   Schoul.    Pers.    Prop.     135-137;     Clark  z'.  Burnside,  15  111-  62. 

Amos  &  Fer.  Fixtures,  2,  3;    Elwes  v.         ^  Winslow  v.  Merchants'  Ins.  Co.,  4 
Maw,  3  East,  32;   s.  c,  2  Smith  Lead.     Met.  314;    i  Schoul.  Pers.  Prop.  139; 

302 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §   22/ 

mining  whether   the  right  to  take  away,   under  the   law  of 
fixtures,  shall  or  shall  not  be  granted  in  a  particular  case. 

To  classify,  however,  as  in  the  leading  cases  on  this  some- 
what abstruse  subject,  there  are  two  kinds  of  disputes  which 
may  concern  the  representative  of  a  deceased  person  :  first, 
where  controversy  arises  between  him  and  the  heir  or  devi- 
see ;  second,  where  it  is  between  him  and  the  remainder 
man  or  reversioner.  As  to  disputes  of  the  first  kind,  the 
cardinal  rule  is,  that  the  right  to  fixtures  (presuming  the 
person  to  have  died  who  annexed  the  chattels)  shall  be  most 
strongly  taken  in  favor  of  the  heir  or  devisee  as  against  the 
executor  or  administrator.^  The  "incidents  of  a  house,"  so 
to  .speak,  are  presumed  to  pass  with  the  inheritance;  and  of 
fixtures  employed  by  the  deceased  in  trade,  encouragement 
to  trade  is  not  a  doctrine  to  be  invoked  for  the  mere  benefit 
of  assets  and  administration.^  Concerning  ornamental  fix- 
tures, the  rule,  though  anciently  strict  in  favor  of  the  inheri- 
tance, appears  to  have  relaxed,  latterly,  so  as  to  give,  at  least, 
hangings,  pictures,  and  mirrors  fastened  in  the  ordinary 
manner  and  easily  detached,  as  well  as  portable  furnaces, 
stoves,  and  ornamental  chimney-pieces,  to  the  personal  rep- 
resentative, as  chattels  personal  and  assets.^  In  some  parts  of 
the  United  States,  as  in  New  York,  the  legislature  gives,  on 
behalf  of  the  executor,  a  more  equal  presumption  in  such  con- 

2  Smith  Lead.  Cas.  239,  251,  Hare  &  reference  to  the  latter.  In  the  case  of 
Wall,  notes;  Sheen  v.  Rickie,  5  M.  &  a  devisee,  however,  the  true  intention 
W.  175.  Manure  taken  from  the  barn-  of  the  will  is  an  element  which  might 
yard  of  a  homestead  and  piled  upon  the  affect  the  presumption  under  some  cir- 
land  is  part  of  the  realty,  and  does  not  cumstances.  Wood  v.  Gaynon,  i  Ambl. 
go  to  the  personal  representative.  Fay  395;  Birch  v.  Dawson,  2  Ad.  &  El.  37. 
V.  MuXzey,  13  Gray,  53;  Plumer  v.  Plu-  ^  ib.;  Fisher  v.  Dixon,  13  CI.  &  Fin. 
mer,  30  N.  H.  558.  Cf  Aleyn,  32;  312;  Amos  &  Fer.  Fixtures,  154  et  seq. 
Wms.  Exrs.  731.  '  Squier  v.  Mayer,  2  Freem.  249; 
1  I  Schoul.  Pers.  Prop.  140,  141;  Wms.  Exrs.  732-739;  Beck  v.  Rebow, 
Shep.  Touch.  469,  470;  Colegrave  v.  i  P.  Wms.  94;  i  Schoul.  Pers.  Prop. 
Dias  Santos,  2  B.  &  C.  76;  Fay  v.  141-143;  Blethen  z/.  Towle,  40  Me.  310. 
Muzzey,  13  Gray,  53.  Hop-poles  in  But  a  heavy  stove  or  furnace  or  a  grate 
use  for  growing  hops  at  the  time  of  the  so  set  into  the  house  as  not  to  he  readily 
owner's  death  pass  with  the  real  estate,  removed  without  disturbing  brickwork 
Bishop  V.  Bishop,  11  N.  Y.  123.  The  and  masonry,  cannot  be  taken  by  the  ad- 
same  favor,  it  appears,  should  be  ex-  ministrator  as  ngninst  the  heir  Tuitle 
tended  to  a  devisee  as  to  an  heir;  ?'.  Robinson.  33  N.  H.  104;  Rex  v.  St. 
though  the  discussion  arises  usually  with  Dunstan,  4  B.  &  C.  686. 

303 


§  22/  EXECUTORS    AND    ADMINISTRATORS.  [PART  III, 

troversy ;  ^  and  as  the  kindred  to  take,  whether  by  descent 
or  distribution,  are  nearly  identical  in  this  country,  less  dis- 
pute need  arise  than  in  England,  where  the  inheritor  of  land 
in  a  family  is  treated  with  favor  in  various  ways.  When 
such  disputes  exist,  the  usual  rule  applies,  that  the  status  of 
the  property  at  the  owner's  death  must  determine  its  nature 
and  the  consequent  devolution  of  title.^ 

As  between  the  executor  of  a  life  tenant  and  the  remain- 
der man  or  reversioner,  the  common  law  appears  to  favor  the 
soil  rather  less,  and  the  representative  desiring  to  annex 
rather  more  ;  for  here  are  not  antagonizing  claims  of  title,  as 
between  realty  and  personalty,  but  the  landed  interest  of  one 
under  a  will  is  compared  with  that  of  another,  the  court 
desiring  to  carry  out  the  testator's  intent.  In  this  case,  to 
do  full  justice  to  the  estate  of  a  life  tenant,  erections  for 
trade  as  w^ell  as  domestic  purposes  have  been  permissively 
disannexed  on  the  life  tenant's  death,  for  the  benefit  of  his 
estate.  The  case,  though  not  quite  so  strong  as  between 
landlord  and  tenant  (to  use  Lord  Hardwicke's  expression),  is 
governed  by  the  same  reasons.^  But  where  chattels  remain 
on  the  premises,  disannexed,  at  the  death  of  one  tenant  for 
life,  the  next  tenant  for  life  cannot  prejudice  or  affect  the 
rights  to  vest  at  his  death,  by  attaching  them  to  the  free- 
hold.* 

•  2  Kent  Com.  345;    I  Schoul.  Pers.  2  Bishop  jy.  Bishop,  11  N.  Y.  123,  is  a 

Prop.  143;   House  v.  House,  10  Paige,  case    where    hop-poles    stood    in    the 

157.      Chandeliers,  gas-fixtures,  and  a  ground  for  use  at  the  testator's  death, 

private  apparatus  for  generating  gas  will  but  were  afterwards  taken  up   for  the 

pass  to  the  heir,  it  is  held,  as  against  the  purpose  of  picking  the  hops  and  heaped 

executor  or   administrator.      Lawrence  in  the  yard. 

V.    Kemp,    I     Duer,    363;    Johnson    v.  ^  Lord     Hardwicke     in     Dudley    v. 

Wiseman,  4  Mete.  357;  Hays  t'.  Doane,  Warde,  Ambl.   113.     See  also   i  H.  Bl. 

II  N.J.  Eq.  84,96,/^;'  Williamson,  Ch.  260,  ;/./  Elwes  v.  Maw,  3    East,  54;    2 

But    chandeliers,    brackets,    and    other  Smith  Lead.  Cas.  245;    i   Schoul.  Pers. 

things  readily  detachable,  and  sold  else-  Prop.  144;    Wms.  Exrs.  741-743- 

where,  are   certainly    not   part    of  the  *  D'Eyncourt  v.  Gregory,  L.  R.  3  Eq. 

realty,  nor  presumably  sold  or  let  with  a  382.     Pews  in  church  are  by  the  com- 

house  under  all  circumstances;    aliter,  mon  law  real  estate,  and   the  title  goes 

as  it  seems  with  the  running  gas  and  accordingly;    but   in  some   States  they 

water  pipes,  in  controversies  of  the  jires-  are  made  personal  property  hv  statute. 

ent  kind.     See  Vauihen  v.  Haldeman,  I  Schoul.  Pers.   Prop.  it;8;    McXabb  z-. 

33  P'^nn.  St.  522;   Montague  v.  Dent,  Ponrl.  4  Bradf.    (N.  Y.)    7-     As  to  fix- 

10  Rich.  135.  tures  in   general,  see    i    Schoul.    Pers. 

304 


CHAP.  I.J  ASSETS  OF  AN  ESTATE.  §  228 

§  227  a.  Rule  of  Assets  applied  to  Severance  of  Land  Prod- 
ucts, etc.  —  Trees  which  are  blown  down  to  such  an  extent 
that  they  cannot  grow  as  trees,  are  pronounced  assets  for  the 
executor  on  the  principle  of  severance ;  while  trees  that 
would  continue  to  grow,  but  must  be  cut  for  the  proper  culti- 
vation of  the  grounds,  belong  to  the  life  tenant  under  the  will.^ 

§  228.  Rule  as  to  Foreign  Assets.  —  The  fundamental  prin- 
ciple upon  which  personal  property,  corporeal  or  incorporeal, 
including  rights  of  action,  whose  situation  is  in  some  differ- 
ent sovereign  jurisdiction,  may  be  regarded  as  assets,  we 
have  already  had  occasion  to  discuss.  ^ 

The  general  rule  is  that  simple  contract  debts,  such  as  a 
policy  of  insurance  not  under  seal,  are,  for  the  purpose  of 
founding  administration,  assets  where  the  debtor  resides 
without  regard  to  the  place  where  the  voucher  may  be  found.^ 
But  the  State  or  country  which  charters  a  corporation  is  its 
domicile  in  reference  to  debts  which  it  owes  because  there 
only  it  can  be  reached  for  the  service  of  judicial  process  ;  and 
States  or  countries  where  a  foreign  corporation  does  busi- 
ness, have  enlarged  the  facilities  of  local  administration  in 
many  respects  by  appropriate  statute."*  Bills,  notes,  and  in- 
corporeal personalty  on  which  money  is  payable,  are  suit- 
able local  assets  to  found  local  administration  upon,  where 
one  dies  domiciled  elsewhere,  if  there  be  any  way  to  realize 
upon  them.^ 

Prop.    135-160;     Amos  &    Ferard    on  Mutual  Life    Ins.   Co.    v.    Woodworth, 

Fixtures.  iii  U.  S.  138,  144. 

1  Swinburn  v.  Ainslie,  28  Ch.  D.  89.  °  Epping  v.  Robinson,  21  Fla.  36. 

'^  Supra,  §  175.  Stock   of  a   corporation   in   another 

8  Wyman  v.  Halstead,  109  U.  S.  654.  State   may  be  local    assets.      Luce   v. 

*  See  Mr.  Justice  Blatchford  in  N.  E.  Manchester  R.,  63  N.  H.  588. 


§  229  EXECUTORS    AND    ADMINISTRATORS.  [PART  III, 


CHAPTER    II. 

INVENTORY     OF     THE     ESTATE. 

§  229.  Inventory  required  formerly  in  England ;  Custom 
Fallen  into  Disuse.  —  By  an  English  statute,  enacted  during 
the  reign  of  Henry  VIII.,  every  executor  or  administrator 
was  required  to  file  with  the  ordinary  a  sworn  inventory  of 
"all  the  goods,  chattels,  wares,  merchandises,  as  well  mov- 
able as  not  movable,"  of  the  deceased.^  Statute  22  &  23 
Car.  II.  c.  10,  §  I,  made  the  return  of  an  inventory  of  the 
"goods,  chattels,  and  credits  of  the  deceased,  come  to  his 
possession,"  at  or  before  a  specified  day,  a  condition  of  each 
administration  bond.^  Probably,  however,  from  a  much  ear- 
lier period,  the  practice  of  the  English  spiritual  courts  stren- 
uously prescribed  this  duty,  with  the  countenance  of  temporal 
tribunals.^  It  was  a  breach  per  se  of  the  administration 
bond  to  neglect  filing  an  inventory  by  the  time  specified  ; 
and  in  some  county  jurisdictions  an  executor  had  to  exhibit 
his  inventory  before  probate  would  be  granted  him.* 

Nevertheless,  the  custom  of  filing  an  inventory  has  fallen 
quite  into  disuse  in  modern  English  practice.  The  bond 
given  under  the  Court  of  Probate  Act  is  conditioned  to  make 
an  inventory  when  lawfully  called  on,  and  to  exhibit  the  same 
whenever  required  by  law  to  do  so;^  in  other  words,  unless 
the  representative  is  cited  in,  he  incurs  no  official  obligation 
in  the  matter ;  and  to  such  a  conclusion  the  spiritual  practice 
seems  to  have  been  forced  before  this  act  was  passed.^     But 

1  Stat.  21  Hen.  VIII.  c.  5,  §  4.     See         *  Wms.  Exrs.  975  ;   i  Phillim.  240. 
Wms.  Exrs.  974,  for  the  full  text  of  the         ^  Wms.  Exrs.  532,  974-976. 

statute  requiiement.  ^  Wms.    Exrs.    976;   i    Phillim.    240. 

2  Wms.  Exrs.  529,  974.  But  in  some  cases  the  court  might  ex 
^  The  effect   of   neglecting  to  file  an     officio  require  an  inventory  to  be  brought 

inventory    exposed    the    executor  in  all     in,  and   it   is  prudent   for  the  adminis- 
courts  to  an  imputation,  sometimes  con-     trator  or  executor    to  exhibit  it  before 
elusive,    of    waste,    should    the    assets     finally  settling  the  estate.      I    Phillim. 
prove    insufficient.      Orr  v.    Kaines,    2     240;   I  Hagg.  106. 
Yes.  Sen.  193;   Swinb.  pt.  6,  §§  6-9. 

306 


CHAP.   II.]  INVENTORY    OF    THE    ESTATE.  §  23O 

the  English  theory  is  still  to  compel  an  executor  or  adminis- 
trator to  exhibit  an  inventory  on  the  petition  of  any  person 
in  interest,  or  even  of  one  who  aj^pears  to  have  an  interest ;  ^ 
and  the  instance  is  very  rare  where  such  a  petition  will  be 
refused,  if  presented  within  a  reasonable  time.^ 

§  230.  Inventory  required  in  American  Practice  ;  whether  In- 
dispensable.—  The  inventory  is  a  settled  feature  of  probate 
practice  in  the  United  States.  And  as  the  American  pro- 
bate theory,  favoring  public  registry  in  such  matters,  is,  that 
the  legal  representative, — unless  a  residuary  legatee  who 
elects  to  oblige  himself  simply  to  pay  all  debts  and  legacies 
and  run  the  risk  of  assets,  —  shall  render  accounts  of  his 
administration,  his  first  duty,  as  relates  to  the  court,  is,  after 
obtaining  his  credentials,  to  prepare  and  file  an  inventory  of 
the  assets  of  the  deceased ;  such  inventory  to  serve  as  the 
basis  of  his  probate  accounts.  The  bonds  of  executors  and 
administrators  are  accordingly  conditioned,  in  all  or  most  of 
the  leading  States,  to  return  an  inventory  to  the  probate 
court  or  registry  within  a  specified  period  from  the  date  of 
qualification.  Thus,  under  the  Massachusetts  statute,  the 
judge  of  probate  issues  an  order,  usually  on  the  day  when 
the  executor  or  administrator  qualified,  and  upon  his  verbal 
request,  to  three  suitable  disinterested  persons  ;  these  apprais- 
ers, having  been  sworn  to  the  faithful  discharge  of  their  trust, 
appraise  the  estate  of  the  deceased  upon  an  inventory  blank 
which  accompanies  the  order,  filling  up  schedules,  and  deliver- 
ing the  document,  when  completed,  to  the  executor  or  admin- 
istrator, by  whom  it  should  be  returned  to  the  probate  oflfice 
for  record  with  his  own  oath  that  the  list  is  just  and  perfect.^ 
Similar  legislation  is  to  be  found  in  Wisconsin  and  various 

1  A  probable  or  contingent  interest  representative,  or  where  double  reme- 
entitles  one  to  petition  for  an  inventory;  dies  are  being  pursued  for  attaining 
so,  too,  the  claim,  though  disputed,  of  a  this  result.  Wms.  Exrs.  978;  2  Cas. 
creditor.     Wms.   Exrs.   976,   and  cases  temp.  Lee,  loi,  134,  356. 

cited;  2 Cas.  temp.  Lee,  251,  344;  i  Phil-  ^  Mass.  Gen.  Stats,  c.  96,  §  2;  Smith 

lim.  240;   Gale  v.  Luttrell,  2  .\dd.  234.  (Mass.)   Prob.  Pract.  103.     The  verifi- 

2  Wms.  Exrs.  979,  980.  It  has  been  cation  appears  to  be  based  upon  the 
refused  where  assets  sufficient  for  the  ecclesiastical  practice.  Gary  Prob.  Pract. 
petitioner's  purpose  are  admitted  by  the  I2I. 


§  230 


EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 


Other  States  at  the  north-west ;  ^  also  in  New  York,  where 
(as  under  EngUsh  statutes^)  two  appraisers  suffice,  and  the 
appraisal  is  to  be  made  in  duplicate  and  upon  previous  notice 
given  to  legatees  and  next  of  kin  resident  in  the  county,  so 
that  they  may  attend  when  it  is  made,  if  they  desire.^ 

Three  months  is  usually  the  prescribed  period  within  which 
an  executor  or  administrator  should  return  his  inventory  to 
the  court  or  registry  whence  his  appointment  came.  In  some 
States  only  one  inventory  is  required,  and  for  additional  prop- 
erty coming  to  his  possession  or  knowledge,  as  well  as  income 
and  accretions,  the  executor  or  administrator  is  bound  only  to 
account ;  *  but  the  New  York  statute  provides  for  filing  a  sup- 
plemental inventory  in  such  a  case.^  Filing  a  second  inven- 
tory to  correct  errors  of  the  first  is  sometimes  permitted.^ 
But  where  no  property  has  come  to  his  hands,  the  representa- 
tive may  dispense  with  the  formality  and  cost  of  an  inven- 
tory." 


1  Gary  Prob.  Tract.  §  318. 

2  Wms.  Exis.  974. 

8  Redfield's  (N.  V.)  Surr.  Pract.  214. 
Clerks  and  persons  employed  in  a  pro- 
bate office  are  excluded  by  local  statutes 
more  or  less  specirically  worded,  and 
such  exclusion  is  founded  in  sound  rea- 
sons of  policy.  Appraisers  are  allowed 
compensation;  and  various  abuses  have 
sprung  up  where  the  probate  office  is 
permitted  to  compete  with  professional 
men  and  the  public  for  private  fees  and 
emoluments  in  connection  with  the  set- 
tlement of  estates,  of  which  they  keep 
the  records.  As  to  method  of  notice 
see  4  Dem.  176. 

The  English  statute  21  Hen.  VIII. 
c.  5,  §  4,  prefers  interested  to  disin- 
terested persons,  i.e.,  creditors,  legatees, 
or  next  of  kin.  Wms.  Exrs.  974.  But 
appraisement  is  not  made  in  modern 
English  practice  pursuant  to  the  letter 
of  the  statute.     Wms.  Exrs.  981. 

*  Hooker  v.  Bancroft,  4  Pick.  50. 

6  Redfield's  (N.  Y.)  Suit.  Pract.  215; 
4  Redf.  (N.  Y.)  489.  See  also  the  Con- 
necticut statute,  Moore  v.  Holmes,  32 
Conn.  553;   and  as  to  the  Pennsylvania 


rule,  Commonwealth  v.  Bpyan,  8  S.  &  R. 
128. 

°  Bradford's  Admr.,  i  Browne,  87. 

^  Walker  v.  Hall,  i  Pick.  20;  2  Dak. 
189.  If  a  verified  account  is  filed  show- 
ing no  assets,  the  burden  is  on  those 
who  assert  otherwise  to  show  assets.  2 
Dem.  129.  So,  too,  it  is  held,  where 
there  were  no  assets  left  to  exhibit  to 
appraisers,  but  all  the  assets  had  been 
justly  used  in  paying  the  funeral  ex- 
penses and  debts.  Robbins,  Matter  of, 
4  Redf.  (N.  Y.)  144.  Overruled  by 
Creamer  v.  Waller,  2  Dem.  263.  See 
Littlefield  v.  Eaton,  74  Me.  516.  A  con- 
testant of  a  will  may  insist  upon  an  in- 
ventory. 15  Phila.  588.  One  whose 
claim  as  a  creditor  of  the  estate  is  dis- 
puted may  nevertheless  have  the  execu- 
tor compelled  to  file  an  inventory.  2 
Dem.  351;  4  Dem.  275.  An  unverified 
list  of  assets  is  no  inventory.     3  Dem. 

358. 

Whether  a  provision  in  a  will  can  re- 
lieve of  the  duty  of  filing  an  inventory, 
see  2  Dem.  331;   3  Dem.  108. 

An  executrix  need  not  file  an  inven- 
tory of  property  held  by  herself  as  life- 


308 


CHAP.  II.]        INVENTORY  OF  THE  ESTATE.  §  23 1 

The  failure  to  return  an  inventory  does  not  necessarily 
render  the  executor  or  administrator  personally  liable  for  the 
assets ;  nor  does  the  omission  of  any  particular  debt  from  the 
inventory  items  make  him  absolutely  chargeable  with  it  ;  but 
the  question  is  essentially  one  of  culpable  negligence  or  mis- 
conduct on  his  part,  occasioning  a  loss.^  Nevertheless,  the 
failure  to  file  an  inventory  by  the  time  specified,  as  American 
statutes  run,  amounts  technically  to  a  breach  of  the  condition 
of  the  bond,  which  may  or  may  not  prove  serious  in  its  con- 
sequences ;  but  rarely  can,  if  upon  citation  the  executor  or 
administrator  performs  this  duty,  or  shows  good  reason  why 
an  inventory  should  be  deferred  or  dispensed  with.^  In  some, 
but  not  all,  of  our  States,  there  are  express  statute  provisions 
for  summoning  the  delinquent  representative  to  return  his 
inventory,  or  else  show  cause  why  attachment  should  not 
issue  ;  also,  upon  reasonable  cause  appearing,  for  granting 
him  further  time  within  which  to  make  such  return.^ 

§  231.  Dispensing  vrith  an  Inventory  after  Lapse  of  Time. — 
Time  alone  constitutes  no  bar  against  the  requirement  of  an 
inventory,  where  the  statute  fails  explicitly  to  sanction  the 
omission.  But  if  a  long  period  has  elapsed,  such  as  forty 
years,  a  presumption  might  arise  either  that  the  estate  had 
been  fully  settled  or  that  there  were  no  assets  available  ;  *  and 
time,  in  connection  with  other  circumstances,  may  operate 
much  sooner  to  dispense  with  filing  an  inventory.^ 

tenant  under  the  will.     The  right  of  a  maladministration  against  the  represen- 

remainder  man  to  demand  an  inventory  tative.     Hart  v.  Ten  Eyck,  2  Johns.  Ch. 

depends    upon     allegation     of     waste.  62. 

Brooks  V.  Brooks,  12  S.  C.  422.  ^  Redf.  (N.  Y.)  Surr.  Pract.  215.    As 

1  Leake  v.  Beanes,  2  Har.  &  J.  373 ;  in  English  practice,  the  application  for 

Moses   V.    Moses,   50   Ga.  9,   30;   Con-  a  summons   to    file  an    inventory    may 

nelly's    Appeal,     l     Grant    (Pa.)    366;  be  made   by  any    one  interested    in   the 

.Stearn  v.  Mills,  4  B.  &  Ad.  657.  estate;    e.g.,  an  apparent  creditor.     For- 

'■^  McKim  V.  Harwood,  129  Mass.  75;  syth  v.  Burr,  37  Barb.   540.     The  court 

Adams  v.  Adams,  22  Vt.   50;    Lewis  v.  may    summon     at     its    own     instance, 

Lusk,  35  Miss.  696.     Damages  may  be  though  this  is  seldom   done.      Thonip- 

assessed  for  failure  to  make  and  return  son  v.  Thompson,  i  Bradf.  24. 

an  inventory.    Scott  v.  Governor,  l  Mo.  *  Ritchie  7>.  Rees,  l  Add.  144. 

686.     See   Potter  v.   Titcomb,    i   Fairf.  ^  See    Wms.    Exrs.    979;     Bowles    v. 

53;    Bourne  v.  Stevenson,   58  Me.  499.  Harvey,  4  Hagg.  241;    Scurrah  f.  Scur- 

Such  neglect  may  support  a  charge  of  rah,  2  Curt.  919.     See  further, /t>.s/,  as  to 


§  233  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

§  232.  Qualified  Representative  not  exempt  from  rendering  an 
Inventory.  —  It  is  not  in  probate  practice  the  original  execu- 
tor or  administrator  alone,  or  an  administrator  with  the  will 
annexed,  who  is  bound  to  make  and  return  an  inventory.  An 
administrator  de  bonis  non  should  inventory  such  estate  of 
the  deceased  remaining  unadministered  as  may  have  come  to 
his  possession  or  knowledge.^  So,  too,  the  representatives  of 
a  deceased  executor  or  administrator  are  compellable,  at  the 
discretion  of  the  court,  to  bring  in  an  inventory,  as  well  as  a 
final  account,  on  behalf  of  the  delinquent  testate  or  intestate.^ 
Other  instances  are  found  in  English  reports  in  which  inven- 
tories have  been  officially  required;^  and,  as  Williams  ob- 
serv^es,  the  ecclesiastical  court  discouraged  all  hanging  back 
with  respect  to  the  production  of  an  inventory  when  called  for, 
and  generally  condemned  the  contumacious  in  costs  besides.* 
In  American  practice,  the  bonds  of  all  executors,  administra- 
tors, probate  guardians,  and  testamentary  trustees,  are  usually 
conditioned  to  return  an  inventory  ;  ^  and  without  an  inventory 
valuation  as  a  basis,  they  cannot  readily  prepare  their  accounts 
in  due  form. 

§  233.  "What  the  Inventory  should  contain.  —  According  to 
English  practice,  the  inventory  should  contain  a  full  descrip- 
tion and  valuation  of  all  the  personal  property  to  which  the 
executor  or  administrator  became  entitled  by  virtue  of  his 
office ;  this  document  being  in  effect  a  list  of  the  assets  for 
which  he  stands  chargeable,  taken  at  their  just  worth.^  What 
these  assets  are  we  showed  in  the  preceding  chapter ;  and 
chattels,  real  and  personal,  animate  and  inanimate,  corporeal 
and  incorporeal,  answering  to  that  description,  are  to  be  in- 
dispensing  with  an  account.  Calling  for  "^Yo.;  Ritchie  t'.  Reese,  i  Add.  158; 
an  account  in  connection  with,  or  by  Gall  v.  Luttrell,  2  Add.  234. 
way  of  substitution  for,  an  inventory,  ^  E.g.,  from  administrators  durante 
brings  up  this  issue  more  plainly.  A  minorilate  and  administrators  pendente 
sworn  declaration  instead  of  an  inven-  lite.  Wms.  Exrs.  980;  I  Cas.  temp, 
tory,  setting  forth  desperate  debts,  may  Lee,  15;  2  Cas.  temp.  Lee,  131. 
suffice  often  to  discharge  the  representa-  *  Wms.  Exrs.  980;  I  Phillim.  241, 
tive  where  no  valuable  assets  ever  came  243;  2  Phillim.  364. 
to  his  possession  or  knowledge.  .See  ^  t^ge  Smith  (Mass.)  Prob.  Pract.  lOi. 
Higgins  V.  Higgins,  4  Hagg.  242.  ®  Wms.  Exrs.  980. 

^  Wms.  Exrs.  979. 

310 


CHAP.  II.]        INVENTORY  OF  THE  ESTATE.  §  233 

eluded.  Such,  too,  is  the  doctrine  generally  prevalent  in  the 
United  States  ;  but  while  in  some  parts  of  this  country  only 
personal  property  of  the  deceased  should  be  inventoried,  the 
legislatures  of  other  States  insist  that  his  real  estate  shall 
also  be  appraised,  two  separate  schedules  being  made,  and  the 
schedule  of  personal  property  alone  serving  as  the  basis  of 
the  executor's  or  administrator's  accounts.^  The  latter  prac- 
tice appears  the  more  convenient,  as  affording  record  proof 
of  all  the  assets,  actual  or  potential,  upon  which  creditors 
and  legatees  may  rely  ;  and,  under  a  will  which  confers  the 
power  to  manage  and  control  the  testator's  real  estate,  or 
where,  as  some  local  statutes  provide,  the  representative  has 
a  general  right  of  possession  of  the  real  estate  while  the 
estate  is  being  settled,  there  are  reasons  especially  urgent 
why  real  property  should  be  scheduled. 

An  inventory  should  be  specific  in  its  enumeration  of  the 
effects  of  the  estate ;  not  necessarily  minute,  of  course,  and 
yet  so  as  to  separate  large  items  of  value,  and  set  out  by 
themselves  such  special  classes  as  chattels  real,  household 
furniture,  cattle,  stock  in  trade,  cash,  and  securities  of  the 
incorporeal  sort,  such  as  notes  and  bonds,  all  of  which  fall 
under  the  denomination  of  personal  property  and  assets.^  If 
property  found  among  the  effects  of  the  deceased,  and  coming 
to  the  possession  of  the  representative,  is  claimed  by  others 
under  a  title  not  yet  established,  it  seems  prudent  to  include 
this  item  in  the  list,  with  words  or  a  memorandum  indicating 
doubt  as  to  the  representative's  own  title.^  Bonds  and  invest- 
ment securities  should  be  stated  at  their  current  market  value, 
or  possibly,  in  some  convenient  instances,  at  par ;  provided,  in 
the  latter  instance,  that  the  representative  carefully  regard 
the  fair  premium  in  dealing  and  disposing  of  them,  so  that 
those  interested  shall  have  the  benefit  shared  justly.'*  Debts 
and  incorporeal   choses  of   a  doubtful,  desperate,  or  worth- 


1  See  supra,  §  198;   Smith's  (Mass.)  2  Vanmeter  v.  Jones,  3  N.  J.  Eq.  520. 

Prob.  Pi  act.  102;   Gary  Prob.  Pract.  §  ^  Waterhouse  v.  Bourke.  14  La.  Ann. 

330,    citing   statutes  of  Minnesota   and  358;    eiold's  Case,  Kirby  (Conn.)  loO. 

Wisconsin.     Cf.  Henshaw  v.  Blood,   i  ■»  If  set  forth    at  par,   the    inventory 

Mass.  35.  should  so  state  the  fact. 

3" 


§  233  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

less  character  should  be  so  denominated.     Real  estate  should 
be  specified  by  parcels.^ 

An  inventory  is,  after  all,  but  prinid  facie  evidence  of  the 
true  value  of  assets,  and  prudence  and  good  faith  is  the  test 
of  the  representative's  responsibility  in  dealing  therewith  ;  so 
that  whether  more  happens  to  be  actually  realized,  or  less,  or 
the  title  fails  altogether,  the  exercise  of  reasonable  diligence 
and  honesty  on  his  part  is  all  that  the  law  can  exact  from  the 
execvitor  or  administrator.  Such  being  the  result,  all  dis- 
crepancies may  be  corrected  in  a  representative's  accounts, 
and  debit  or  credit  given  accordingly.  Hence,  too,  the  valu- 
ation in  the  inventory  by  one  standard  or  another  appears  to 
be  of  less  consequence  than  a  consistent  valuation  by  the 
particular  standard  as  therein  plainly  exhibited  ;  for  values, 
and  especially  those  of  various  marketable  stocks  and  securi- 
ties, may  fluctuate  from  day  to  day,  so  as  to  furnish  no  abso- 
lute criterion  of  accountability.  Similar  considerations  apply 
to  accruing  profits,  and  the  interest  and  income  of  personal 
property  left  by  the  deceased.  Such  accretions  might  well  be 
included  up  to  the  date  of  appraisal,  though  not  later  ;  or,  per- 
haps, might  be  left  out  altogether,  as  is  not  infrequent ;  but 
by  whichever  standard  reckoned,  any  inventory  must  be  very 
far  from  affording  a  perfect  statement  of  profits,  interest,  and 
income  as  they  come  to  the  hands  of  the  executor  or  admin- 
istrator ;  so  that  at  best  the  inventory  figures  represent  only 
approximately  the  gross  available  assets  in  many  instances, 
and  must  be  supplemented  by  the  administration  accounts.^ 

*  See  Adams  v.  Adams,  20  Vt.  50 ;  rather  of  the  probate  court.  Redf. 
Wms.  Exrs.  981.  Appraisal  at  the  mar-  Surr.  Pract.  211;  Sheldon  v.  Bliss,  8 
ket  value,  as  nearly  as  can  be  ascer-  N.  Y.  31.  See  §  447/(55/"  as  to  rights  of 
tained,  whether  above  or  below  par,  widow,  etc.  A  separate  and  distinct 
appear  to  be  the  rule  as  to  marketable  inventory  of  the  property  allowed  the 
investment  securities.  Gary  Prob.  Pract.  widow  is  required  in  some  States,  such 
§  328.  Exempt  articles  belonging  to  as  Wisconsin.  Gary  Prob.  Pract.  §  321. 
widow  and  children,  though  not  deemed  A  debt  returned  in  the  inventory 
assets,  should  be  included  and  stated  in  without  comment  will  be  presumed  col- 
the  inventory  without  being  appraised,  lected  or  collectible.  Graham  v.  David- 
N.  Y.  Stat,  cited  Redfield's  Surr.  Pract.  son,  2  Dev.  &  B.  Eq.  155;  Hickman  v. 
211.  And  in  New  York  the  appraisers  Kamp,  3  Bush,  205.  Contra  where 
appear  to  have  powers  as  to  setting  returned  as  desperate.  Finch  v.  Rag- 
apart  for  the  widow,  which  in  some  land,  2  Dev.  Eq.  137. 
other  States  call   for   the   intervention  2  ggg  willoughby  z/.  McCluer,  2  Wend. 

312 


CHAF     II.]  INVENTORY    OF   THE   ESTATE.  §  234 

§  234.  "What  the  Inventory  should  contain;  Subject  contin- 
ued. —  Local  statutes  prescribe  in  terms,  more  or  less  spe- 
cific, what  shall  be  included  in  the  inventory.  As  to  general 
property  of  the  deceased,  the  rule  embraces  all  that  has  come 
to  the  "possession  or  knowledge"  of  the  e.xecutor  or  adminis- 
trator ;  and  to  this  his  oath  of  verification  usually  corresponds 
in  tenor.  Hence  notes  or  chattels  of  any  kind  in  the  hands 
of  other  persons,  and  belonging  of  right  to  the  executor  or 
administrator,  must  be  inventoried,  as  also  debts,  demands, 
and  claims  still  uncollected ;  and  if  the  representative  choose 
to  leave  such  things  in  a  different  possession  still,  by  way  of 
offset  to  the  possessor's  own  demand  upon  the  estate,  he 
must  go  through  the  form  of  discharging  himself  on  his 
accounts.^  It  is  not  competent,  as  English  courts  hold,  for 
the  court  of  probate  to  insist  that  an  inventory  shall  include 
personal  estate  situated  in  a  foreign  country,  since  this  is 
out  of  its  own  jurisdiction  and  cognizance  j^  and  practically, 
indeed,  the  means  of  appraising  what  is  abroad  are  imperfect. 
But  it  is  held  by  various  American  tribunals,  in  construction 
of  the  local  statute,  that  personal  assets  belonging  to  a  de- 
ceased resident  of  the  State  must  be  included  in  the  inven- 
tory of  his  general  executor,  even  where  situated  in  another 
State.^  Such  requirement  does  not  apply  to  an  ancillary 
appointee  with  such  strictness,  probably,  inasmuch  as  his 
authority  is  more  strictly  local.* 

Assets  of  whose  existence  neither  the  executor  or  admmis- 
trator,  nor  the  appraisers,  are  at  the  time  aware,  cannot  of 


609;  Mass.  Gen.  Stats,  c.  98,  §  6.  It  is  Sherman  v.  Page,  28  N.  Y.  Supr.  59, 
fair  that  the  inventory  should  show  or  that  where  the  testator  names  an  exec- 
indicate,  as  to  all  interest-bearing  securi-  utor  to  take  charge  of  property  within, 
ties,  the  rate  of  interest,  name  of  debtor,  and  another  of  property  without,  the 
date  from  which  unpaid  interest  has  run,  State,  such  an  executor  is  only  bound  to 
etc.  See  also  Weed  v.  Lermond,  t,^  account  for  such  property  as  may  be 
Me.  492.  within  the  State  in  which  he  is  appointed. 

^  See  Wms.  Exrs.  979,  980,  Perkins's  Muniments  of  title  and  securities  repre- 

note;    Smith  (Mass.)  Prob.  Pract.  loi-  senting  incorporeal  rights  abroad,  and 

103;   Gary  Prob.  Pract.  §  318.  valuable /«*/-  se  in  enforcing  sucl:  rights, 

2  2  Gas.  temp.  Lee,  55 1;   Wms.  Exrs.  ought,  in    general,  we  presume,  to  be 

982.  inventoried,  whatever  comity  might  pro- 

8  Butler's  Inventory,  38  N.  Y.  397.  nounce  the  locus  of  the  debt  or  right. 

*  See  supra,  §   181.      It  is  held  in 


§  236  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

course  be  inventoried ;  and  no  blame  is  to  be  impiUed  to  the 
representative  in  consequence,  if,  gaining  knowledge  thereof 
afterwards,  he  charges  himself  in  his  accounts  with  the  prop- 
erty, and  pursues  the  usual  line  of  duty  as  to  procuring  or 

realizing  the  same.^ 

§  235.  Assets  and  Inventory  in  Special  Instances ;  Co-owner- 
ship, etc.  —  Should  a  stranger  administer  upon  the  estate  of 
one  of  several  wards  owning  a  common  fund,  he  can  and  ought 
to  make  an  actual  division  of  the  fund  with  the  guardian  of 
the  surviving  wards,  and  file  an  inventory  accordingly.  But 
if  the  guardian  procures  his  own  appointment  as  administra- 
tor on  the  deceased  ward,  he  cannot  by  assuming  this  double 
character  evade  the 'duty  of  severing  the  tenancy  in  common 
by  other  methods  equally  distinctive  and  unequivocal ;  and 
of  likewise  filing  an  inventory  which  may  show  the  separate 
share  belonging  to  the  estate.^ 

;  \ 

§  236.  Effect  of  the  Inventory ;  Power  of  the  Local  Probate 
Court  to  alter,  etc.  ;  Inventory  as  Evidence.  —  In  New  York  the 
appraisers'  estimate  of  the  value  of  articles  is  not  regarded  as 
the  exercise  of  an  absolute  discretion  on  their  part,  but  their 
opinion  is  subject  to  review  by  the  probate  court.^  Such, 
however,  is  the  inconclusiveness  of  any  inventory  valuation 
in  probate  law  that  the  court  of  probate  is  seldom  asked  to 
intervene  in  such  a  manner,  and  the  extent,  moreover,  of  such 
a  jurisdiction,  apart  from  statute  sanction,  may  be  a  matter 
of  serious  question.*     If,  howe^^r,  the  personal  representa- 

1  As  to  the  duty  of  the  representative  those  purposes  is  its   basis,  not  a  title 

to  inventory  property  which  has    been  already  vested  in  the  representative  and 

fraudulently   transferred    by    the    dece-  undisputed.     The    douljtfulness    of  the 

dent,    cf.    Booth    v.    Patrick,    8    Conn,  title  is  matter  for  note  by  the  appraisers 

105,  with  Minor  v.  Mead,  3  Conn.  289;  in  setting  the  valuation. 

Bourne  v.  Stevenson,  58  Me.  504;  An-  ^  Colvert  v.  Peebles,  71  N.  C.  274. 

drews  v.  Tucker,  7  Pick.  250.     And  see  ^  Applegate    v.    Cameron,    2    Bradf. 

supra,  §   220.     Agreeably  to  the  prin-  119;    Redf.  (N.  Y.)  Surr.  Pract.  212. 

ciple  stated   in  the  text,  it  is  perceived  *  English  temp0r.1l  judges  have  denied 

that  the  inventory  includes,  by  express  the  authority  of  ecclesiastical   courts  to 

mention  or  inference,  all  the  assets,  all  entertain    objections    to    an    inventory 

that  the  representation  is  bound  to  real-  after  it  has  been  exhibited.     Hinton  v. 

ize  and  procure  for  administration  pur-  Parker,    8     Mod.     168;     Catch-.ide     v. 

poses;   and  that  the  claim  of  a  title  for  Ovington,   3   Burr,   1922;     Wms.   Exrs 


CHAP.  II.]       INVENTORY  OF  THE  ESTATE.  ^  2T,6 

tive  and  the  appraisers,  or  the  appraisers  among  themselves, 
differ  as  to  what  should  in  fact  be  included  in  the  inventory, 
or  if  otherwise  there  is  such  variance  that  the  inventory  can- 
not be  returned  to  court  in  due  form  as  exhibiting  their  con- 
currence ;  or  if  the  appraisers  are  delinquent ;  the  court,  as  it 
seems,  may  properly  make  orders  appropriate  to  the  exigency, 
and  perhaps  a  warrant  might  issue  to  other  appraisers,  the 
previous  one  being  revoked.  For,  inasmuch  as,  in  American 
practice  at  least,  the  failure  of  the  executor  or  administrator 
to  return  a  true  and  perfect  inventory  is  taken  to  be  a  direct 
breach  of  his  official  bond,^  he  ought  not  to  be  made  answer- 
able for  the  disagreement,  caprice,  or  carelessness  on  the  part 
of  the  appraisers,  despite  his  own  protest  and  without  his  own 
fault.  Where,  moreover,  appraisers  are  specially  empowered 
to  set  apart  property  for  the  widow,  it  is  held  that  their 
negligence,  fraud,  or  possible  abuse  of  such  authority  may  be 
corrected  by  the  probate  court  or  surrogate ;  and  likewise  an 
irregularity,  mistake,  or  improper  valuation,  though  conscien- 
tiously made  by  them.^ 

A  court  of  probate  ought  not,  it  would  appear,  to  reject 
an  inventory  or  order  it  modified,  because  it  contains  prop- 
erty the  title  to  which  is  disputed ;  for  to  common-law  tribu- 
nals belongs  the  adjudication  of  the  title,  and  the  probate 
court  cannot  conclude  the  question. ^  But,  granting  that  an 
inventory  cannot  be  impeached,  this  only  affects  proceedings 
relating  to  the  inventory  itself ;  and  it  may  be  shown  on 
the  accounting  of  the  executor  or  administrator  that  assets 
were  omitted  which  were  or  ought  to  have  been  accounted  for, 
and  that  assets  yielded,  or  should  have  yielded,  more  than  they 
were  appraised  at ;    so,   vice  versa,  on  the  accounting,   the 

983.  But  the  highest  ecclesiastical  v.  Connet,  2  J.  J.  Marsh.  195.  An  ad- 
court  in  England  has  nevertheless  en-  niinistrator  may  show  that  he  certified 
tertained  objections  to  inventories,  to  the  inventory  under  an  error  of  fact, 
though  not  permitting  witnesses  to  falsify  Martin  v.  Boler,  13  La.  Ann.  369.  See 
it.     2  Add.  331;    Wms.  Exrs.  985.  i  Dem.  306. 

^  Bourne  v.  .Stevenson,   58  Me.  499.         -  Applegate    v.   Cameron,    2    Bradf. 

An  inventory  not  certified  by  the  exec-  1 19.     Legatees  or  next  of  kin  may  not 

utor  or  administrator  is  not  as  to  him  interfere  with  an  appraisal;   they  must 

an  inventory,  and  is  not  ground   siiffi-  wait    for    the    accounting.      Vugel    v. 

cient    for    charging     him.       Parks    v.  Arhogast,  4  Dem.  399. 
Rucker,  5  Leigh,  149.     But  see  Carroll        ^  Gold's  Appeal,  Kirby  (Conn.)  100. 


§  236  EXECUTORS    AND    ADMINISTRATORS.  [PART  III, 

inventory  may  be  shown  to  have  included  what  should  have 
been  omitted  or  to  have  rated  specified  things  for  more  than 
they  could  fairly  bring.  ^ 

An  inventory  duly  returned  to  the  probate  court  or  regis- 
try, is,  according  to  modern  authorities,  primd  facie  proof  of 
the  amount  of  property  (personal,  or  personal  and  real,  as 
the  case  may  be)  belonging  to  the  estate  within  the  State 
or  country  where  jurisdiction  was  taken  ;  ^  and  also  of  its 
worth  by  items  at  the  time  of  appraisal.  But  being  only 
prima  facie  evidence,  the  executor  or  administrator  is  simply 
chargeable  so  as  to  have  the  onus  of  disproving  its  correct- 
ness ;  ^  and  in  a  controversy  between  himself  and  the  ap- 
praisers, he  may  show  that  the  valuation  is  too  high  or  too 
low ;  ^  nor,  certainly,  are  subsequent  changes  of  value,  or 
subsequent  additions  to  the  assets,  or  gains  or  losses  in  real- 
izing the  assets,  to  be  disregarded,  whatever  the  inventory 
itself  may  have  shown.^  In  short,  the  inventory,  while 
primd  facie  evidence  of  the  value  of  the  property,  as  well  as 
of  the  property  itself,  which  came  to  the  executor  or  admin- 
istrator, as  well  as  of  the  solvency  of  those  who  owe  the 
estate,  —  rendering  him  primd  facie  liable  accordingly,  —  is 
not  conclusive  either  for  or  against  the  executor  or  adminis- 
trator or  his  sureties,  but  is  open  to  denial  or  explanation.^ 
As  a  matter  of  judgment  record,  an  appraisement  confirmed 


1  See  Part  VII., /<75/,  as  to  accounts;  Ga.   76;   McWillie   v.   Van  Vacter,  35 

Montgomery  v.  Dunning,  2  Bradf.  Surr.  Miss.  428.    Nor  does  it  estop  the  repre- 

220.  sentative  from  recovering  it.     Conover 

*  Wms.  Exrs.  1966;    Giles  v.  Dyson,  v.  Conover,  i  N.  J.  Eq.  403. 

I  Stark.  N.  P.  32;    Reed  v.  Gilbert,  32  Concerning  the  effect  of  an  inventory, 

Me.  519;    Morrill  v.  Foster,   t,t,  N.  H.  as  an  admission  of  assets,  the  English 

379.  courts  have  distinguished   between  the 

^  lb. ;   Hoover  v.  Miller,  6  Jones  L.  inventory  exhibited  before  probate  (as 

79;   Cameron  v.  Cameron,  15  Wis.  i.  required  by  some  county  ecclesiastical 

*  Ames  V.  Downing,  i  Bradf.  321.  tribunals)  and  the  inventory  proper. 
See  Loeven's  Estate,  Myrick  Prob.  See  Wms.  Exis.  1968;  Steam  v.  Mills, 
(Cal.)   203.  4  B.  &  Ad.  657. 

^  Willoughby  v.   McCluer,   2   Wend.  ^  Nabb  v.  Nixon,  7  Nev.   163;   Grant 

608;   Mass.  Gen.  Stats,  c.  98,  §  7.     The  -'.  Reese,  94  N.  C.  720;  Lynch  v.  Devan, 

failure  to  inventory  certain  ]iroperty  is  66  Wis.  490.      As  to  the  executor's  or 

not  conclusive  against  those  interested  administrator's  own  del^t  (which  should 

in  the  estate.      Walker  v.  Walker,  25  be  inventoried),  see  supra,  §  208. 

316 


CHAP.    II.]  INVENTORY    OF   THE    ESTATE.  §  237 

by  the  court  is  conclusive  only  of   the  subject  to  which  it 
relates.^ 

§  237.  Advantages  of  Returuiug  an  Inventory.  —  The  inven- 
tory is  of  advantage,  both  to  the  executor  or  administrator 
himself,  and  to  creditors,  legatees,  heirs,  and  other  persons 
interested  in  the  estate.  It  is  the  basis  upon  which  the 
representative  makes  his  accounts ;  it  shows  the  amount 
for  which  he  is  chargeable,  and  limits  presumptively  his 
responsibility,  except  for  increments,  income,  and  such  assets 
not  therein  appraised,  through  ignorance,  inadvertence,  or 
other  cause,  as  may  come  afterwards  to  his  hands.  On  the 
other  hand,  the  heirs  and  other  parties  interested  have,  in  the 
recorded  inventory,  the  best  evidence  possible  under  the  cir- 
cumstances of  the  assets,  their  condition  and  value,  as  they 
came  to  the  representative's  possession  and  knowledge  at 
the  outset  of  his  administration,  and  supplies  them  with  essen- 
tial evidence,  in  case  it  becomes  necessary  to  institute  pro- 
ceedings against  him  or  oppose  the  allowance  of  his  accounts, 
because  of  negligence  or  misconduct  while  invested  with  his 
responsible  offer. '-^ 

1  Seller's  Estate,  82  Penn.  St.  153.  tative  for  maladministration  should  be 

2  Smith    Prob.    Pract.    loi,    102.  inventoried    as    assets.      Nesmith,    Re, 
A   claim  against  a  former  represen-     (N.  Y.). 


PART    IV. 

GENERAL  POWERS,  DUTIES,  AND  LIABILITIES  OF  EXEC- 
UTORS AND  ADMINISTRATORS  AS  TO  PERSONAL 
ASSETS. 


CHAPTER   I. 

representative's   title  and  authority  in  general. 

§  238.  Title  to  Personal  Property  devolves  upon  Representa- 
tive by  Relation  from  Decedent's  Death.  —  We  have  observed 
that,  in  modern  practice,  acts  performed  before  quahfication 
in  good  faith,  and  for  the  benefit  of  the  estate,  are  generally- 
cured  by  qualification,  whether  the  representative  be  execu- 
tor or  administrator;  and  that  his  authority  once  fully  con- 
ferred by  the  probate  court,  the  representative's  title  relates 
back  substantially  to  the  date  of  the  decedent's  death.^  We 
have  observed,  also,  that  as  to  property  left  by  the  dece- 
dent, the  general  rule  is  that  title  to  personal  property  de- 
volves thus  immediately  upon  the  executor  or  administrator, 
while  title  to  the  real  property  does  not ;  and  that  property 
of  the  one  kind  constitutes  at  common  law  assets  in  the  rep- 
resentative's hands,  while  property  of  the  other  kind  does 
not,  except  under  peculiar  circumstances,  or  when  there  is  a 
deficiency  of  personal  assets. ^  These  statements  cover  nearly 
the  whole  ground  of  the  representative's  title ;  but  to  better 
elucidate  those  fundamental  doctrines,  let  us  explore  the  sub- 
ject further  in  the  course  of  the  present  chapter. 

1  Supra,  §§   194,  195.     Where  one  cannot  be  affected  to  the  prejudice  of 

discharges   a  mortgage  before   his    ap-  the   estate    by    his    acts    prior    to    his 

pointmcnt  as  executor  or  administrator,  appointment.     Wiswell  v.   Wiswell,  35 

the  discharge  becomes  valid  by  his  ap-  Minn.  371.     And  see    McDearmon   v. 

pointment.    30  Hun  (N.  Y.)  269.    And  Maxfield,  38  Ark.  631. 
so  with  a  fair  sale  of  property.   50  N.  Y.  ^  Supra,  §  198. 

Supr.    225.      An    administrator's    title 


CHAP.  I.]       representative's    TITLE    AND    AUTHORITY.       §  239 

§  239.  The  Representative's  Title  and  Authority  during  the 
Administration  excludes  that  of  all  Others  in  Interest.  — The  title 
of  the  executor  or  administrator,  a.s  representative,  extends 
so  completely  to  all  personal  property  left  by  the  decedent  as 
to  exclude  creditors,  legatees,  and  all  others  interested  in  the 
estate.  They  cannot  follow  such  property  specifically  into 
the  hands  of  others,  much  less  dispose  of  it  ;  but  the  executor 
or  administrator  is  the  only  true  representative  thereof  that 
the  law  will  regard. ^  The  legal  and  equitable  title  to  all  the 
personal  property  of  the  deceased,  including  choscs  in  action 
and  incorporeal  rights,  vests  in  fact  in  the  executor  or  admin- 
istrator, as  against  all  others,  during  the  suitable  period  for 
administration,  and  he  holds  this  property  as  a  trustee  and 
proper  representative  of  all  parties  interested  therein.^ 

This  paramount  title  of  the  personal  representative  is 
recognized  in  various  instances.  A  lien  cannot  attach  on 
the  goods  of  a  principal  before  he  parts  with  their  posses- 
sion ;  and,  accordingly,  if  a  principal  die  in  possession  of  the 
goods,  and  they  came  afterward  to  the  possession  of  his 
administrator,  the  title  is  changed,  and  a  factor,  who  may 
receive  them  from  the  administrator,  cannot  be  permitted  to 
hold  them  for  advances  made  to  the  deceased  in  his  lifetime, 
without  the  administrator's  assent.^  And  so  completely  does 
title  to  the  personal  assets  vest  in  the  representative,  that 
they  are  not  subject  to  seizure  and  sale  under  an  execution 
issued  on  a  judgment  rendered  against  the  decedent  after  his 
death.'*  The  representative's  claim  is  of  course  inferior  to 
that  of  heirs,  distributees,  or  residuary  legatees,  so  long  as 

1  Wms.'Exrs.  932;  Haynes  v.  For-  derived  from  the  deceased,  for  the  pay- 
shaw,  II  Hare,  93;  Nugent  v.  Giffard,  nient  of  debts,  etc.,  and  to  his  right  of 
I  Atk.  463;  Beattie  v.  Abercrombie,  18  present  possession.  Beckett  i*.  Selover, 
Ala.  9;   Goodwin  v.  Jones,  3  Mass.  514.  7  Cal.  215. 

2  Beecher  v.  Buckingham,  18  Conn.  All  the  personalty  of  the  decedents, 
lio;  Neale  v.  Ilagthorp,  3  Bland  including  property  covered  by  his  bill 
(Md.)  551 ;  Alston  v.  Cohen,  I  Woods,  of  sale,  but  never  delivered,  pass  to  the 
487.  To  this  rule  statute  exceptions  possession  and  control  of  his  executor 
are  found  in  some  parts  of  the  United  or  administrator.  Palmer  v.  Palmer,  55 
States.     Thus,  under  the  California  sys-  Mich.  293. 

tern   (as  in  Texas),  real  and  personal  ^  Swilley  v.  Lyon,  18  Ala.  552. 

estate  ft)llo\vs  one  rule:  it  vests  in  the  *  Snodgrass  z/.  Cabiness,  15  Ala.  160. 

heir  subject  to  the  representative's  lien, 

.319 


§  241  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  estate  remains  unsettled  ;  ^  but  counsel  nominated  under 
the  will  to  assist  him  cannot  control  his  discretion.^ 

§  240.  Executor  or  Admuiistrator  has  a  right  to  dispose  of 
Personal  Assets.  —  It  follows  that  the  executor  or  administra- 
tor, and  he  alone,  has  an  absolute  dominion  and  power  of  dis- 
posal, in  law  and  equity,  over  the  goods,  chattels,  rights,  and 
effects  of  the  deceased ;  he  can  dispose  of  them  at  pleasure, 
being,  however,  responsible  for  the  faithful  execution  of  his 
trust ;  and  others  in  interest  cannot  follow  such  property 
into  the  hands  of  the  alienee.^  Only  a  statute,  or  the  will  of 
the  testator,  can  restrain  the  power  of  a  personal  representa- 
tive to  thus  alienate  the  personal  property  of  his  deceased. 

S  241.  The  same  Subject;  Executors  and  Administrators  dis- 
tinguished in  this  Respect.  —  But  here  we  must  distinguish 
between  executors  and  administrators.  An  administrator's 
office  is  conferred  by  the  court  appointment,  and  his  author- 
ity is  derived  from  statute  and  the  general  probate  law,  not 
from  any  confidence  reposed  in  him  by  the  deceased  ;  his 
powers  and  duties  consequently  are  commensurate  with 
others  of  his  class,  and  are  defined  by  general  rules.*  But 
it  is  quite  different  with  the  executor;  for  his  authority, 
being  conferred  by  a  will  duly  admitted  to  probate,  is  subject 
in  a  great  measure  to  the  powers  and  restrictions  which  the 
testator  may  therein  have  prescribed.  The  will  of  the  tes- 
tator making  special  appropriations  of  the  several  parts  of 
his  property,  is  a  law  to  his  executors  from  which  they  ought 

1  Bearss    v.    Montgomery,   46    Tnd.  ministrator   at    common   law;     and   he 

544;    Alston  V.  Cohen,  I  Woods,  487.  must  administer  all  the  goods,  chattels, 

■■2  Young  V.  Alexander,  16  Lea,  108.  rights,  and  credits  which  are  within  the 

8  Beecher  v.  Buckingham,  18  Conn.  State;   the  local  statute  tends  to  enlarge 

no;  Neale  z/.  Hagthorp,  3  Bland  (Md.)  rather  than  restrain  this  authority.     See 

551;    Lappin  v.  Mumford,   14  Kan.  9.  Goodwin  v.  Jones,  3  Mass.  514. 
See   cs.    3,   4,    more    fully   as  to  sales,  In  Louisiana  the  law  is  of  civil  origin 

pledges,  etc.,  of  personal  property  by  the  and  peculiar;   it  appears  that  the  func- 

representative.  tions  of  an  executor  cease  at  the  end  of 

*  An  administrator  in  most  parts  of  a  year,  while  those  of  an  administrator 
the  United  States  has  all  the  power  continue  until  the  administration  is  fin- 
over  the  personal  property  of  the  de-  ished.  Ferguson  v.  Glaze,  12  La.  Ann. 
ceased  which  are  possessed  by  an  ad-  667. 

320 


CHAP.  I.]       representative's    TITLE    AND    AUTHORITY.       §  242 

not  to  swerve,  unless  authorized  by  some  proper  tribunal,' 
and  save  in  accordance  with  the  fundamental  maxim,  that  the 
necessity  of  settling  lawful  debts  and  charges  against  one's 
estate  must  override  all  testamentary  dispositions.  And 
where  trusts  are  raised  by  the  will,  but  no  trustee  is  ap- 
pointed by  the  testator,  the  law  makes  the  executor,  or  any 
one  who  may  be  legally  intrusted  with  the  execution  of  the 
will,  virtually  the  trustee  in  many  senses,  and  he  may  con- 
sequently retain  funds  in  his  hands  for  the  purposes  of  such 
trust,  until  the  probate  court  expressly  appoints  a  trustee.^ 

§  242.  But  Title,  etc.,  of  Executor  or  Administrator  is  by  way 
of  Trust.  —  The  title  of  the  representative,  however,  is  not 
absolute,  but  exists  only  for  special  purposes  connected  with 
the  settlement  of  the  estate.  Thus  the  title  of  an  adminis- 
trator vests  by  way  of  trust  in  order  to  enable  him  to  admin- 
ister the  property  according  to  law,  by  paying  the  debts  of 
the  deceased,  and  the  funeral  and  other  necessary  charges, 
and  making  distribution  on  final  settlement.'^  An  executor, 
again,  has  the  property  only  under  a  trust  to  apply  it  for 
payment  of  the  testator's  debts,  and  such  other  purposes  as 
one  ought  to  fulfil  in  pursuance  of  his  ofifice  under  the  will.* 
Nor  can  a  trust  term  devised  to  executors  continue  so  as  to- 
retain  the  legal  estate  in  them  a  moment  longer  than  is  nec- 
essary to  enable  them  to  perform  the  objects  of  the  trust.^ 
As  with  his  title,  so  in  its  ultimate  consequences  with  his 
power  of  disposition,  one  deals  with  the  property  in  the  inter 
ests  of  the  estate  he  represents.  His  cardinal  duty  is  to 
settle  the  estate  according  to  law,  or  the  last  will  of  the  de- 
ceased, as  the  case  may  be,  with  due  diligence,  fidelity,  and  a 
reasonable  discretion. °  In  fact,  the  interest  which  an  execu- 
tor or  administrator  has  in  the  property  of  the  deceased  is 
very  different  from  the  interest  one  has  in  his  own  property ;. 
for,  as  the  old  writers  state  the  point,  an  executor  or  adminis- 

1  Voorhees  v.  Stoothoff,  11  N.  J.  L.  8  Hall  v.  Hall,  27  Miss.  458;   Lewii 
145;    Stallsworth  v.  Stallsworth,  5  Ala.     v.  Lyons,  13  111.  117. 

144;    Wood  V.  Nelson,  9  B.  Mon.  600.  •«  See  Ashurst,  J.,  in  4  T.  R.  645. 

2  Saunderson  v.  Stearns,  6  Mass.  37;  ^  Smith  v.  Dunwoody,  19  Ca.  238. 
Dorr   V.   Wainwright,     13    Pick.    328;  ^  The    precise  legal  standard  of  re- 
Groton  v.  Ruggles,  17  Me.  137.  sponsibility  is  considered  in  c.  3,  post. 

321 


§  243  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

trator  has  his  estate  as  such  in  aider  droit  merely,  viz.,  as  the 
minister  or  dispenser  of  the  goods  of  the  dead.^ 

§  243.  Identity  of  Assets  should  be  preserved  apart  from  the 
Representative's  Private  Funds,  so  as  to  preserve  the  Title  Intact. 

—  So  long  as  the  property  of  the  estate  is  kept  distinguishable 
specifically  from  the  mass  of  his  own,  the  executor  or  admin- 
istrator will  not  by  his  bankruptcy  or  insolvency  pass  the  title 
to  his  assignees  j^  nor  does  bankruptcy  of  itself  affect  his  rep- 
resentative character,  though  it  might  perhaps  afford  good 
ground  for  seeking  his  removal  from  the  trust.^  Nor  can 
goods  and  chattels  which  may  be  identified  as  belonging  to 
the  decedent's  estate  be  taken  in  e*xecution  for  the  debt  of 
the  executor  or  administrator.*  Nor  upon  the  death  of  the 
personal  representative  will  such  property  held  in  another's 
right  devolve  in  title  upon  his  own  representative,  or  pass 
under  the  provisions  of  his  will.^ 

So,  if  an  executor  or  administrator  make  transfer  of  all  his 
goods,  or  release  all  his  demands  and  rights  of  action,  the 
presumed  intention,  and  consequently  the  effect,  is  that  the 
transfer  or  release  shall  not  operate  upon  goods,  demands,  or 
rights  of  action  which  he  has  in  his  fiduciary  capacity.^  Mar- 
riage, too,  even  under  the  old  law  of  coverture,  did  not  vest 
in  the  husband  a  title  to  goods  and  chattels  which  belonged 
to  his  wife  in  aiiter  droit? 

But  if  the  representative  mingle  the  goods,  rights,  and 
effects  of  the  intestate  with  his  own,  in  such  a  manner  that 
they  cannot  be  distinguished,  the  effect  must  necessarily  be 

1  9  Co.  88  b;  2  Inst.  236;  Wms.  Where  a  lease  is  made  with  proviso  for 
Exrs.  636.  The  usual  consequences  as  forfeiture  and  re-entry  if  the  lessee  "  or 
to  property  held  in  atitei-  droit  attach;  his  executors,  administrators,  or  as- 
thus,  at  common  law,  the  goods  of  the  signs  "  shall  become  bankrupt,  the 
deceased  were  not  forfeited  by  attainder  bankruptcy  of  the  executor  or  adminis- 
of  the  executor  or  administrator,  nor  trator  will  operate  accordingly.  Doef. 
applicable  to  debts  which  the  represen-  David,  i  Cr.  M.  &  R.  405. 

tative  owed  to  the  crown,     i  Hale,  P.  *  Farr  v.   Newman,   4   T.    R.    621  ; 

C.  251;    Wentw.  Off.  Ex.  194,  14th  ed.;  Wms.  Exrs.  640. 

Wms.  Exrs.  636.  ^  Wms.  Exrs.  639,  644;   2  Plowd.  525. 

2  Wms.  Exrs.  637,  638;  11  Mod.  138;  ^  I  Show.  153;   2  Ld.  Raym.  1307. 
Farr  v.  Newman,  4  T.  R.  648.  "  Co.  Lit.  351  a;   Schoul.  Dom.  Rel 

3  Wms.    Exrs.    638;    §    \^i,,  supra.  §86. 

322 


CHAP.    I.]       representative's    TITLE    AND    AUTHORITY.       §  244 

to  subject  the  whole  to  a  devolution  of  title  in  favor  of  his 
assignee  in  bankruptcy,  execution  creditor,  or  personal  rep- 
resentative, as  the  case  may  be.  There  is  quite  commonly 
a  partial  mingling  of  the  trust  funds  with  one's  own  ;  as  in 
case  of  the  loose  cash,  specie,  or  bank  bills  found  about  a 
decedent,  which  a  representative  will  for  convenience  mix 
with  his  own  money. ^  In  the  course  of  administration,  the 
executor  or  administrator  almost  necessarily  pays  out  sums 
far  expenses,  taking  property  of  the  estate  by  way  of  recom- 
pense, and  by  contract  incidentally  causing  a  transfer  of  title 
to  himself.  And  it  is  a  well-established  rule  that  if  the 
representative  pays  out  of  his  own  moneys  debts  to  the  value 
of  the  personal  assets  in  hand,  he  may  apply  the  assets  to 
his  own  use  towards  satisfaction  of  his  moneys  so  expended  ; 
and  by  such  election  the  assets  become  absolutely  his  own 
property.^  Where  trust  and  individual  funds  are  mingled, 
the  estate  becomes  a  creditor  with  other  creditors  for  its  just 
balance  ;  though  to  place  the  estate  in  this  precarious  attitude 
or  to  speculate  with  such  funds  is  a  breach  of  official  duty.-"^ 

§  244.  No  Title  is  taken  by  Representative,  to  Property  held 
by  Decedent  in  Another's  Right.  —  The  personal  representa- 
tive takes  no  available  title  to  personal  chattels  of  which 
the  deceased  held  possession  in  another's  right,  and  kept  so 
that  their  identity  may  be  traced.  Thus,  the  bare  fact  that 
one  died  in  possession  of  property,  as  administrator  on 
another's  estate,  will  not,  it  is  held,  enable  his  personal  ref>- 
resentative  to  maintain  trover,  where  the  right  to  the  goods 
in  question  has  devolved  upon  the  administrator  dc  bonis 
non  of  the  original  intestate  owner.^  So,  too,  a  third  person 
coming  into  possession  of  a  thing  bailed  among  the  dead 
man's  effects,  cannot,  though  he  be  a  coroner,  resist  the 
bailor's  demand  by  setting  up  the  title  of  the  deceased  bail- 
ee's   personal    representatives.^      Nothing    but    the    bailee's 


1  See  Went.    Off.    Ex.  c.    7,  p.    196,  ^  See  c.  ^,post,  as  to  management,  etc 

14th  ed.;    Wms.  Exrs.  646.  *  Elliott  v.  Kemp,  7  M.  <S:  W.  306. 

^  Livingston    v.    Newkirk,    3    John,  *  Smiley  v.  Allen,  13  Allen,  36s 
Ch.  312,  318, /<fr  Chancellor  Kent. 


§  245  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

possible  lien  for  reimbursement,  or  jus  tertii   can    obstruct 
the  recovery  of  the  property  in  such  cases.^ 

If,  therefore,  the  representative  takes  possession  of  personal 
property  which  was  in  possession  of  his  decedent  at  the  time 
of  his  decease,  but  to  which  another  has  title,  his  exercise 
of  dominion  is  at  his  own  peril ;  and  if  he  sells  the  property 
as  his  decedent's,  he  is  individually  liable  in  trover  to  the 
true  owner  for  its  value.^  But  the  mere  possession  of  prop- 
erty by  a  decedent  at  the  time  of  his  death  gives  to  his  legal 
representative  the  right  to  its  possession,  as  against  third 
parties  having  no  better  right,  and  he  may  bring  trover  ac- 
cordingly.^ 

§  245.  Representative  does  not  succeed  to  Decedent's 
Trusts,  but  should  close  the  Accounts.  —  Nor,  again,  does  the 
representative  succeed,  by  virtue  of  his  office,  to  any  trust 
exercised  by  the  decedent  during  his  life ;  but  his  duty  is  to 
render  a  final  account  closing  up  the  trust,  as  respects  the 
deceased,  to  see  that  the  estate  of  the  deceased  is  properly 
reimbursed  for  all  charges  and  expenditures  properly  incurred, 
and  relieved  of  all  further  responsibility.  Should  there  remain 
any  surplus  or  further  duties  to  be  discharged  under  the  trust, 
he  should  transfer  the  fund  to  the  proper  successor  in  the 
trust,  and  leave  him  to  perform  all  further  functions  relative 
thereto.*  Hence,  the  administrator  of  an  assignee  in  trust  for 
creditors  is  not  bound  in  continuance  of  the  trust  to  superin- 

^  Schoul.  Bailm.  71.  the  successor  of  the  trustee.     Rowley  v. 

2  Yeldell  v.  Shinholster,  15  Ga.  189;  Fair,  I04-Ind.  189. 

Newsum  v.  Newsum,  i  Leigh,  86.     But  An  executor  of  the  estate  of  a  de- 

where  securities  which  came  into  execu-  ceased  guardian,  into  whose  hands  the 

tor's  hands  as  assets  of  their  testatrix's  ward's  money  comes,  holds  it,  as  did  the 

estate,  proved  to  belong  in  fact  to  her  guardian,  in  trust  for  the  ward ;    such  a 

husband's  estate,    after    they  had   been  fund   is   not  general   assets  of   the  tes- 

appropriated    by   the    executors    in   the  tator's    estate.     Bloxham    v.    Crane,    19 

proper  discharge  of  their  duties,  without  Fla.  163. 

notice,  they    were    protected   in   equity.  '^  Cullen  v.  O'Hara,  4  Mich.  132. 

Mulford  V.  Mulford,  40  N.  J.  Eq.  163;  *  See   Little  v.  Walton,  13  Penn.  St. 

cf.  39  Hun  (N.  Y.)  348.  164.     Under    the   New    York    code  an, 

Where  a  township   trustee  dies,  the  executor's  executor  cannot  be  required' 

public  moneys  in  his  hands  pass  to  his  to  deliver  over  the  trust  property  of  the 

administrator,  but  for  the  township.     It  original  testator's  estate   except  to  the 

is   the   administrator's    duty  to    deliver  court  or  a  newly  appointed  representa- 

them  up,  if  they  can   be  identified,  to  tive.     5  Dem.  305. 

324 


CHAP.  I.]      representative's   TITLE   AND   AUTHORITY.       §  247 

tend  the  trust  property,  nor  is  it  strictly  proper  for  him  to 
do   80.^ 

§  246.  Ho'w  one  ceases  to  hold  Assets  as  Representative, 
so  as  to  hold  in  his  Individual  Character  ;  Election,  etc.  —  The 
doctrine  of  merger  sometimes  operates  in  the  case  of  an 
executor  or  administrator  who,  ceasing  to  hold  in  that  char- 
acter becomes  holder  of  assets  in  his  own  right. ^  But  the 
possession  of  the  property  of  a  deceased  person,  as  executor 
or  administrator  merely,  cannot  invest  the  possession  with 
rights  independent  of  and  disconnected  with  the  trust  estate.* 
And  to  determine,  in  general,  when  one  ceases  to  hold  prop- 
erty belonging  to  the  estate,  as  a  fiduciary,  and  holds  it  in 
his  individual  or  other  inconsistent  character,  all  the  circum- 
stances of  the  case  must  be  regarded.* 

Election,  as  to  his  character  or  its  change,  by  the  person 
who  has  different  characters  to  sustain,  becomes  an  essential 
fact  in  any  such  connection.  One  who  is  administrator  of 
two  estates,  may  elect,  it  is  held,  to  which  of  the  two  cer- 
tain property  belongs  ;  but  the  act  manifesting  such  election 
on  his  part  must  be  definite,  clear,  and  certain,  to  estop  him 
afterwards  from  asserting  title.^ 

§  247,  Devolution  of  Title  where  the  Personal  Representa- 
tive is  also  Guardian  of  Decedent's  Children  or  Trustee  under  the 
"Will.  —  To  proceed  with  this  line  of  inquiry.  Administrators 
are  not  guardians  of  the  decedent's  minor  children,  and  can- 
not incur  a  fiduciary  liability  on  such  children's  account;^ 
and  the  same  holds  true  of  executors,  save  so  far  as  the 
testator's  will  may  have  invested  them  with  the  practical 
functions  of  a  testamentary  guardian ;  for  guardianship  is  a 
separate  trust  and  should  not  be  blended  with  that  of  admin- 
istration.^  Nor  is  it  within  the  line  of  the  ordinary  duty  and 
authority  of  an  executor  or  administrator  to  control  property 

1  Bowman  v.   Raineteaux,   i    Hoffm.         *  Wms.  Exrs.  643. 

150-  *  McClane  v.  Spence,  11  Ala.  172;  6 

2  Wms.  Exrs.  641-643;   Prest.  Conv.     Ala.  894. 

310,  31'-  ^  Menifee  v.  Ball,  7  Ark.  520;   Stalls- 

3  Gamble    v.    Gamble,    1 1    Ala.    966,     worth  v.  Stallsworth,  5  Ala.  144. 
975;   Weeks  v.  (iibbs,  9  Mass.  76.  "^  Schoul.  Dom.  Rel.  §  324. 


§  247  EXECUTORS    AND    ADMINISTRATORS,  [PART  IV. 

of  widow  and  children,   or  to  apply   ordinary  assets  in  his 
hands  for  maintenance  and  education.^ 

Thus,  the  same  person  may  be  constituted  executor  under 
the  parent's  will,  or  administrator,  and  also  guardian  of  the 
minor  children  ;  hence  the  question,  whether  he  holds  a  fund 
in  one  or  the  other  capacity.^  The  presumption  arises,  where 
personal  estate  of  the  decedent  is  to  be  transferred  by  way  of 
legacy  or  distribution  in  favor  of  such  minor  children,  that 
one  is  executor  or  administrator  ;  for  to  perform  the  functions 
of  administration  is  first  in  order,  and  some  distinct  act  of 
transfer  is  preliminary  to  fixing  the  liability  of  guardian. 
Passing  the  final  accounts  of  administration  properly,  this 
transfer  of  responsibility  becomes  manifest  enough;^  but 
where  accounts  are  not  rendered  by  the  fiduciary,  circum- 
stances, and  often  slight  ones,  after  a  long  lapse  of  time,  may 
conclude  the  question.  And  the  better  opinion  appears  to 
be,  that  where  a  sole  representative  is  at  the  same  time 
guardian,  the  law  will  adjudge  his  ward's  proportion  of  the 
estate  to  be  in  his  hands  as  guardian  after  the  fuU  expiration 
of  time  fixed  for  the  settlement  of  the  estate.^  On  legal 
principle,  one  ought  not  to  be  sued  both  as  executor  or 
administrator  and  as  guardian,  nor  should  both  sets  of  sure- 
ties be  held  responsible  for  the  fund ;  but  in  doubtful  cases 


1  Wright  V.  Wright,  64  Ala.  88;  »  Schoul.  Dom.  Rel.  §  324;  Alston  v. 
Davis  V.  Davis,  63  Ala.  293.  Nor  can  Munford,  i  Brock,  266;  Burton  v.  Tun- 
the  executor  or  administrator  be  sued  as  nell,  4  Harring.  424;  Stillman  v.  Young, 
such  for  maintenance  of  the  minor  chil-  16  III.  318;  Scott's  Case,  36  Vt.  297. 
dren  of  the  deceased.  Kent  v.  Stiles,  2  But  see  Conkey  v.  Dickinson,  13  Met. 
N.  J.  L.  368.     And  as  to  the  widow's  51. 

necessaries,  see   Sieckman  v.    Allen,  3         *  Watkins  v.  State,  4  Gill  &  J.  220; 

E.  D.   Smith   (N.  Y.)  561.     See  §  447,  Karr   v.    Karr,  6   Dana,    3;  Crosby  v. 

as  to  allowances  to  widow,  children,  etc.  Crosby,  I    S.   C.   N.   S.    337;     Wilson  v. 

2  Schoul.  Dom.  Rel.  §  324;  Wren  v.  Wilson,  17  Ohio  St.  150;  Townsend  v. 
Gayden,  i  How.  (Miss.)  365;  Johnson  Tallant,  33  Cal.  45;  Wood,  Jie,  71  Mo. 
V.  Fuquav,  i  Dana,  514.  The  adminis-  623;  Weaver  v.  Thornton,  63  Ga.  655; 
tratrix  of  a  mortgagor  received  addi-  Carrol  v.  Bosley,  6  Yerg.  220.  But  the 
tional  advances  from  the  mortgagee  on  rule  mav  be  otherwise  with  co-executors 
security  of  the  land ;  this  security  did  or  co-administrators.  Watkins  v.  State, 
not  bind  her  ward,  the  infant  son,  who  4  Gill  &  J.  220;  Coleman  v.  Smith,  14 
was  not  shown  to  have  received  any  S.  C.  511.  And  see  Schoul.  Dom.  Rel. 
benefit  from  the  advances.     Percival  v.  §  324. 

Gale,  40  N.  J.  Eq.  440. 

326 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.       §  247 

which  is  exempted  from  administration  for  the  special  benefit 
of  this  kind,  where  the  principal's  delinquency  has  occasioned 
the  doubt,  the  modern  inclination  is  to  let  the  ward  sue  both 
sets  of  sureties,  leaving  them  to  adjust  their  equities  among 
themselves.^ 

Similar  considerations  apply  to  the  case  of  an  executor 
who  has  likewise  been  constituted  trustee  under  the  will ; 
though  here,  perhaps,  the  regular  qualification  and  procure- 
ment of  letters  which  fixes  the  character  of  the  latter  fidu- 
ciary is  more  likely  to  be  postponed  to  the  final  accounting 
and  settlement  of  the  estate  than  in  the  case  of  a  guardian- 
ship. One  should  not  be  made  liable  as  trustee  for  funds 
which  came  to  his  hands  as  executor ;  but  after  the  lapse  of 
a  considerable  period  the  presumption  may  fairly  be  that  the 
estate  has  been  fully  administered  by  the  executor,  and 
accordingly  that  the  funds  are  held  by  him  in  the  new  char- 
acter.2  But  until  something  has  been  done  whereby  the  execu- 
tor's status  is  changed,  so  that  he  becomes  a  trustee,  such,  for 
instance,  as  a  payment  over  or  allotment  or  credit  of  the  trust 
fund,  and  a  new  account  opened  in  that  capacity,  he  may  be 
removed  as  an  executor  for  his  misconduct,  and  compelled  to 
pass  the  assets  over  to  his  successor.'^  After  so  alloting,  cred- 
iting, or  paying  over  the  trust  fund,  however,  and  still  more 
so  if  he  qualifies  as  trustee  and  charges  himself  with  the  fund 
in  his  new  character  of  trustee,  he  and  his  sureties  are  liable 
accordingly.* 

The  intent  to  create  a  trust  under  a  will  may  be  gathered 
from  the  scope  of  the  instrument  aside  from  technical  words  ; 
and  where,  consequently,  the  duties  imposed  are  active  so 
as  to  render  the  possession  of  the  estate  convenient  and 
reasonably  necessary,  the  executors  will  be  deemed  trustees 
for  the  performance  of  their  duties  to  the  same  extent  as 
though  declared  to  be  so  by  the  most  explicit  language.^ 


*  Harris  v.   Harrison,  78  N-  C.  202;         *  Crocker   v.    Dillon,   133    Mass.  91 ; 

Perry  v.  Carmichael,  95  111.  519;   Mer-  Prior  v.  Talbot,  10  Cush.  i. 
ket  V.  Smith,  2,i  Kan.  66.  ^  Ward    v.   Ward,    105  N.  Y.  68,  and 

2  Jennings  ».  Davis,  5  Dana,  127.  cases    cited;   Scott    v.  West,   63   Wis 

^  Hood,  Re,  104  N.  Y.  103.  529. 


§251  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  248.  Devolution  of  Title  ■where  Representative  is  also  a 
Legatee  or  Distributee.  —  An  executor  who  is  also  a  h^gatee 
may,  by  assenting  to  his  own  legacy,  vest  the  bequest  per- 
sonally in  himself ;  and  so  may  an  administrator  who  is  also 
a  distributee  appropriate  his  own  share  by  acts  and  conduct^ 
manifesting  such  assent.  The  acquisition  of  an  individual 
title  to  particular  assets,  in  pursuance  of  such  an  intention, 
may  be  evinced  by  writings,  duly  executed  with  the  other 
legatees  or  distributees  ;  though  such  formality  is  not  neces- 
sary, if  the  actual  appropriation  be  otherwise  manifested  by 
the  circumstances.^ 

§  249.  Devolution  of  Title  -where  Executor  is  also  Residuary 
Devisee  and  Legatee.  —  An  executor  who  is  residuary  devisee 
and  legatee,  and  gives  bond  for  the  payment  of  debts  and 
legacies,  becomes  absolute  owner  of  the  real  and  personal 
estate,  subject  to  that  fiduciary  obligation,  and  may  sell  or 
otherwise  dispose  of  it  so  as  to  give  a  corresponding  title. ^ 

§  250.  Executor  should  administer  Estate  undisposed  of  under 
the  Will  where  there  is  a  Partial  Intestacy.  —  It  is  the  right  and 
duty  of  the  executor  to  administer  upon  estate  undevised  or 
undisposed  of  under  the  will,  where  there  is  a  partial  intes- 
tacy, as  well  as  to  execute  the  will  itself ;  and  this  he  may  do 
ex  officio  without  procuring  letters  of  administration  for  that 
purpose,^  being  in  such  a  sense  considered  trustee  for  the 
next  of  kin. 

§251.  Right  and  Duty  of  discharging  Contract  Liabilities, 
etc.,  of  Deceased.  —  To  the  personal  representative  belongs  the 

1  Elliott  V.  Kemp,  7  M.  &  W.  313;  v.  Stone,  45  Ind.  404;    Parris  v.  Cobb, 

legacies, /(?^/,-  Wms.  Exrs.  649.  5   Rich.  Eq.  450;    Venal)le  v.  Mitchell, 

'^  Clarke  v.  Tufts,  5  Pick.  337.  The  29  Ga.  566;  Dean  ta  Biggers,  27  Ga.  73. 
fact  that  the  administrator  and  the  heir  Whether  this  rule  applies  to  an  admin- 
are  the  same  person  does  not  make  it  istrator  with  the  will  annexed,  see  §407, 
less  the  administrator's  duty  to  plead  post.  The  local  statute  is  sometimes 
limitations  in  bar  to  a  suit  for  a  debt  explicit  as  to  the  rule  stated  in  the  text. 
due  the  estate,  when  another  creditor  Venable  v.  Mitchell,  supra. 
may  be  injured  by  his  failure  to  do  so.  See  as  to  the  effect  of  appointing  an 
Smith  V.  Pattie,  81  Va.  654.  administrator    in    such   cases,   Patton's 

3  Hays    V.    Jackson,    6    Mass.    149;  Appeal,  31  Penn.  St.  465. 
Wilson  V.  Wilson,  3  Binn.  557;  Landers 

328 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.       §  252 

control  of  the  legal  assets  ;  also  the  right,  together  with  the 
duty,  of  collecting  all  claims  and  discharging  all  liabilities  of 
the  decedent.  As  a  general  rule,  the  personal  representa- 
tive may,  in  his  discretion,  perform,  or  rescind  or  modify  with 
the  consent  of  the  other  party,  any  contract  made  personally 
by  the  deceased  ;  this,  however,  conformably  to  the  law  of 
contracts,  and  for  the  reasonable  interest  of  the  estate.^  He 
may,  as  the  law  at  the  present  day  stands,  compromise  a  law- 
suit, buy  the  peace  of  the  estate  he  represents,  and  extinguish 
doubtful  claims  against  it,  provided  he  act  discreetly  and  in 
good  faith.2  For  the  representative  takes  the  place  of  the 
decedent  as  to  all  contracts  on  which  the  latter  was  bound  at 
his  death,  and  is  expected  to  discharge  them  in  the  manner 
provided  by  law,  or  according  to  the  means  in  his  hands  for 
properly  liquidating  all  of  the  decedent's  obligations.-'^  And 
yet  the  executor  or  administrator  has  no  inherent  power  to 
bind  the  estate  or  those  interested  in  it,  by  special  agree- 
ments, with  a  creditor,  to  keep  open  indefinitely  the  adjust- 
ment of  his  demand  ;  ^  nor  to  impose  onerous  charges  upon 
the  estate  ;  ^  nor  to  make  a  specific  transfer  of  assets  at  dis- 
cretion, so  as  to  create  an  unlawful  preference  among  credi- 
tors,^ or  defraud  others  interested  in  the  estate  of  their  just 
rights.''  He  must  appropriate  the  assets  honestly  and  dis- 
creetly to  the  purposes  and  in  the  manner  prescribed  by  law 
for  the  administration,  settlement,  and  distribution  of  estates 
of  the  dead. 

§  252.  Avoidance,  etc.,  of  Contracts  of  the  Deceased  Illegally 
made,  etc.  —  The  representative  may  avoid  or  dispute  a  con- 
tract, made  by  his  testate  or  intestate,  as  having  been  illegal, 
corrupt,  and  contrary  to  good  morals  or  public  policy,  or  as 
entered  into  when  the  decedent  was  of  unsound  mind.^     In 


1  Gray  v.  Hawkins,  8  Ohio  St.  449;  ^  Gayle,  Succession  of,  27  La.  Ann. 
Dougherty  v.  Stephenson,  20  Penn.  St.  547. 

210;    Laughlin  v.  Lorenz,  48  Penn.  St.  "^  Gouldsmith  v.  Coleman,  57  Ga.  425. 

275;    Davis  V.  Lane,  II  N.  IL  512.  ^  Brown  v.  Evans,  15  Kan.  88. 

2  Meeker  v.  Vanderveer,  15  N.  J.  L.  *  Eubanks   v.    Dobbs,    4   Ark.    173; 
2,^2,  per  Hornblnver,  C.  J.  Sanford,  J.,  in  Ross  v.  Harden,  44  N.  Y. 

^  Woods  V.  Ridley,  27  Miss.  1 19.  Super.  26. 
*  Collamore  v.  Wilder,  19  Kan.  16. 


§   253  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

general  he  may  set  up  such  pleas  in  defence  as  were  open  to 
his  decedent ;  and  out  of  regard  to  the  interests  he  repre- 
sents, he  may  even  take  advantages  and  set  up  defences 
from  which  the  decedent  by  his  own  acts  might  have  been 
precluded.^  Where,  however,  an  executor  or  administrator 
who  might  disavow  his  intestate's  act  on  good  ground,  ratifies 
and  receives  the  benefit  of  it,  he  cannot  afterwards  disavow 
it.2 

§  253.  Contracts  Personal  to  the  Deceased,  etc.,  distinguished 
from  those  requiring  Performance  after  his  Death.  —  There  may 
be  contracts  of  the  deceased  which  are  designed  to  extend 
beyond  his  lifetime,  and  whose  breach  of  fulfilment  will  in- 
volve the  estate  in  damages ;  contracts,  too,  whose  effect  is 
to  encumber  lands  devised  or  the  residuary  fund.^  All  con- 
tracts of  the  decedent,  however,  are  to  be  construed  with 
reference  to  their  subject-matter;  and  hence,  a  contract  to 
perform  certain  duties  growing  out  of  an  existing  personal 
relation,  or  requiring  the  exercise  of  a  personal  skill  and  taste, 
ceases  to  be  binding  when  death  terminates  that  relation, 
and  the  representative  cannot  be  compelled  to  continue  the 
performance.^ 

Subject  to  the  exceptions  just  noticed,  the  death  of  one 
of  two  contracting  parties  does  not  necessarily  terminate  the 
contract,  and  his  estate  may  be  held  liable  in  damages  for 
any  breach  committed  after  as  well  as  before  his  death.^  And 
if  a  contract  with  a  deceased  party  is  of  an  executory  nature, 
and  his  personal  representative  can  fairly  and  sufficiently  exe- 
cute all  that  the  deceased  could  have  done,  he  may  do  so,  and 

^  See  §  220  as  to  recovering  property  ^  See  Pringle  v.  McPherson,  2  Desau. 

fraudulently    transferred    by    the    dece-  524. 

dent.     An  oral  contract  made  with  the  *  Bland    v.    Umstead,    23    Penn.    St. 

decedent  to  hold  the  custody  of  certain  316;    I  Par.  Contr.  6th  ed.  131;    Siboni 

assets  after  his  death,  subject  to  some  v.   Kirkman,    I    M.  &   W.    418;    Wms. 

contingency,  such  as  the  arrival  of  A.  Exrs.  1725;    Smith  v.  Wilmington  Coal 

from  abroad,  cannot,  it  would  appear,  Co.,   83  111.  498;    McGill   v.  McGill,  2 

be  set  up  to  the  detriment  of  an  execu-  Met.  (Ky.)  258.     And  see  c.  i^,  post,  as 

tor's  or  administrator's  right  to  demand  to  the   responsibility  of  an  executor  or 

possession  upon  his  qualification.     Ross  administrator. 

V.  Harden,  44  N.  Y.  .Super.  26.  '°  Smith  v.  Wilmington  Coal  Co.,  83 

2  Riley  v.  Albany  Savings  Bank,  36  111.  498.     See  40  Mich.  226. 
Hun,  513. 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.       §  255 

enforce  the  contract.^  How  all  this  shall  be  done  becomes  a 
matter  for  the  exercise  of  fidelity  and  due  business  discre- 
tion on  the  representative's  part,  aided,  if  need  be,  by  the 
advice  or  authority  of  the  court  or  of  those  interested  in 
the  estate  and  its  surplus.  Thus  the  executor  or  adminis- 
trator of  a  manufacturer  or  artisan  may  w^ell  have  materials 
worked  up  into  goods  fit  for  merchandise.  The  representa- 
tive of  a  mechanic  may  finish  up  the  jobs  on  which  he  was 
engaged  ;  all  this,  supposing  that  what  was  left  by  the  de- 
ceased may  properly  be  finished  by  others,  and  at  a  reason- 
able hope  of  profit  to  the  estate,  which  might  otherwise  be 
liable  in  damages  as  for  breach  of  contract. ^ 

§  254.  Personal  Liability  of  the  Representative  upon  the 
Decedent's  Debts  or  Contracts. — At  common  law,  if  an  exec- 
utor or  administrator  undertakes  to  perform  the  contract  of 
the  decedent,  it  is  upon  his  own  personal  responsibility,  so 
that  if  losses  are  sustained  he  must  bear  them,  while  if  profits 
are  realized  they  become  assets  in  his  hands  for  the  benefit 
of  the  estate.^  Equity  and  modern  probate  courts  regard  the 
question  of  honesty  and  due  discretion  on  his  part  in  passing 
upon  the  representative's  accounts  afterwards.  But  this  is 
only  so  far  as  relates  to  charging  him  with  reference  to  the 
assets  in  his  hands  ;  and  his  personal  liability  may  transcend 
the  limit  of  the  means  at  his  command  where  he  contracts 
without  a  careful  reservation  in  that  respect.  For,  though  a 
bare  promise  by  the  executor  or  administrator  binds  only  the 
assets,  the  true  doctrine  is  that  he  may  make  himself  per- 
sonally liable  by  his  written  promise,  founded  upon  a  suffi- 
cient consideration.'* 

§  255-  The  same  Subject;  how  such  Liability  is  incurred; 
Statute  of  Frauds  ;  Sufficient  Consideration,  etc.  —  Let  us  dwell 
briefly  upon  this  point  of  a  written  contract  by  the  represen- 
tative founded  in  sufficient  consideration.     In  both  England 

^  lb.;   c.  $,  post.  111.  498;    Mowry  v.  Adams,   14  Mass. 

2  Marshall    v.    Broadhurst,    I    Cr.  &  327. 

Jerv.  405;  Garrett  w.  Noble,  6  Sim.  504;  *  Wms.    Exrs.    1776,   and    Perkins's 

VVms.  Exrs.  1794.  note;    Davis   v.    P'rench,    20    Me.    21; 

^  Smith  V.  Wilmington  Coal  Co.,  83  Ellis  v.  Merriman,  5  B.  Men.  296. 


§  255  EXECUTORS   AND    ADMINISTRATORS.  [pART  IV. 

and  the  United  States  the  executor's  or  administrator's 
promise  to  pay  a  debt  or  to  answer  for  damages  of  his  dece- 
dent will  not,  it  is  held,  render  him  personally  liable  unless 
there  was  a  sufficient  consideration  to  support  the  promise ; 
for  a  bare  promise  charges  him,  not  out  of  his  own  estate, 
but  only  in  a  representative  capacity  and  to  the  extent  of  the 
assets  in  his  hands,  just  as  though  he  had  made  no  promise.^ 
A  bare  promise,  there  being  no  assets  at  all,  is,  therefore, 
nudum  pactum ;  and  so  is  any  promise  made,  by  one  having 
no  actual  or  potential  representative  character,  to  pay  a  dead 
person's  debts.^  Under  the  Statute  of  Frauds,  such  collateral 
promises  to  bind  one  individually  should  be  made  in  writing;* 
and,  moreover,  on  general  principle,  there  should  either  be  a 
seal  to  import  a  consideration  or  else  an  actual  good  consid- 
eration for  the  promise.  A  verbal  promise,  therefore,  of  the 
representative  to  pay  his  decedent's  debt  may  be  void  as 
without  consideration  or  void  under  the  Statute  of  Frauds  as 
not  reduced  to  writing.* 

Apart  from  any  statute  requirement  that  the  consideration 
itself,  as  well  as  the  rest  of  the  agreement,  should  be  ex- 
pressed in  writing  (a  point  concerning  which  English  and 
American  authorities  do  not  quite  harmonize),  a  sufficient 

1  Wms.  Exrs.  1776;  Reech  v.  Ken-  person  thereunto  by  him  lawfully  author- 
negal,  i  Ves.  Sen.  126;  Nelson  v.  Serle,  ized.  The  word  "agreement"  here  used 
4  M.  &  W.  795.  But  see  Ridout  v.  has  in  England  been  held  to  mean  that 
Bristow,  I  Cr.  &  J.  as  to  the  promise  by  the  consideration  of  the  promise  as  well 
a  widow.  Also  Templeton  v.  Bascom,  as  the  promise  shall  be  expressed  in 
33  Vt.  132,  as  to  the  promise  by  sole  writing,  or  readily  gathered  from  it. 
distributee.  Wms.  Exrs.   1784.     Wain  v.  Warlters, 

2  Tomlinson  v.  Gill,  Ambl.  330.  5  East,  10.     But  while  in  some  of  the 
8  29  Car.   II.  c.  3,  whose  provisions     American  cases  the  English  rule  of  coii- 

are  enacted  in  all  or  most  American  struction  is  applied  to  corresponding 
States,  declares  that  no  action  shall  be  local  enactments,  others  construe  the 
brought  to  charge  any  executor  or  ad-  language  differently,  and  the  modern 
ministrator  upon  any  special  promise  to  tendency  appears  to  be  against  requir- 
answer  damages  out  of  his  own  estate,  ing  the  consideration  as  well  as  the 
or  to  charge  the  defendant  upon  any  promise  to  be  so  plainly  expressed, 
special  promise  to  answer  for  the  debt,  Wms.  Exrs.  1784,  note  by  Perkins;  I 
default,  or  miscarriage  of  another  per-  Chitty  Contr.  nth  Am.  ed.  92. 
son,  etc.,  unless  the  agreement  upon  *  Sidle  v.  Anderson,  45  Penn.  St. 
which  such  action  shall  be  brought,  or  464;  Wms.  Exrs.  1776;  Walker  v.  Pat- 
some  memorandum  or  note  thereof  shall  terson,  36  Me.  273;  Winthrop  v.  Jarvis, 
be  in  writing  and  signed  by  the  party  to  8  La.  Ann.  434;  Hester  v.  Wesson,  6 
be  charged  therewith,    or   some   other  Ala.  415. 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.       §  256 

consideration  for  such  promise  arises  where  the  creditor  for- 
bears to  sue  the  executor  or  administrator ;  and  forbearance 
to  sue  is  in  various  instances  held  to  be  a  good  consideration, 
and  not  within  the  statute,  even  though  there  were  no  as.sets 
at  the  time  of  the  promise.^  So,  too,  having  assets  is  a  good 
consideration,  according  to  various  modern  authorities,  for 
the  executor's  or  administrator's  promise  to  pay  a  debt  or 
claim  which  the  decedent  owed  ;  this  being,  perhaps,  a  sort 
of  equitable  enlargement  of  the  old  rule  on  this  subject  out 
of  regard  to  the  superior  knowledge  which  every  representa- 
tive should  possess  as  to  the  means  at  his  disposal  for  paying 
demands  upon  the  estate ;  so  that,  having  assets  and  promis- 
ing in  writing,  the  representative  becomes  personally  bound.* 

§  256.  The  Representative's  cwrn  Creation  of  a  Debt  binds 
Himself  and  not  the  Estate. — And  here  we  should  observe 
that  an  executor  or  administrator  has  no  power  in  such 
capacity  to  create  a  debt  against  the  deceased.  He  may 
clearly  have  intended  to  do  so  ;  but  the  effect  of  such  an 
engagement  is,  instead,  to  bind  himself  individually  on  the 
assumed  faith  that  the  assets  he  controls  will,  subject  to  the 
rules  of  administration  which  he  is  bound  to  observe,  furnish 
ample  indemnity  to  himself  for  incurring  the  risk.  Ordina- 
rily, debts  contracted  by  the  personal  representative  are 
obligatory  only  as  personal  obligations,  and  cannot,  prima- 
rily, bind  the  estate  committed  to  him  or  charge  specifically 
the  corpus  of  the  assets ;  these  assets  being  primarily  bound 
rather  for  the  debts  which  the  deceased  himself  contracted 
during  his  lifetime.^  The  executor  or  administrator  may 
contract,  doubtless,  on  principle,  for  all  necessary  matters 
relating  to  the  estate  which  he  represents  ;  but  the  immedi- 

1  I    Roll.   Ahr.    15,   24;    Wms.   Exrs.  2  Wms.  Exrs.  1783;  Cowp.  284,  289; 

1778-1781  ;    Hawes   v.   Smith,   2   Lev.  Reech  v.  Kennegal,   i  Yes.  Sen.    126; 

122;    Bradley  v.    Heath,   3  Sim.   543;  Sleighter  z/.  Harrington,  2  Murph.  332; 

Mosely  v.  Taylor,  4  Dana,  542.     And  Thompson  v.  Maugh,  3  Iowa,  342. 

see  Templeton  v.  Bascom,  2,7,  Vt.  132.  ^  Ferry  v.  Laible,  27  N.  J.  Eq.   146; 

But  where  there  could  plainly  be  no  suit  Clopton  v.  Gholson,  53  Miss.  466;    Mc- 

brought,   so   that   the    forbearance  was  Farlin  %>.  Stinson,  56  Ga.  396;   Tavlor 

needless,  j(f/«(5/c' the  representative's  per-  v.    Mvgatt,    26   Conn.    184;    Austin    v. 

sonal   promise  fails  of  such  considera-  Munro,  47  N.  Y.  360;  Moody  v.  Shaw, 

lion.     McElwec  v.  Story,  i  Rich.  9.  85  Ind.  88. 

333 


§  256  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

ate  and  practical  result  is  that,  a  sufficiency  of  assets  being 
presumed  as  an  element  in  the  undertaking,  he  contracts  as 
upon  his  personal  responsibility  to  keep  good  that  sufficiency. 
And,  notwithstanding  the  intent  is  to  benefit  the  estate, 
every  contract  made  upon  a  new  and  independent  consider- 
ation, moving  between  the  promisee  and  personal  representa- 
tive, is  the  personal  contract  of  the  latter,  binding  himself 
and  not  the  estate  represented.^ 

Indeed,  the  rule  is  that  executors  and  administrators  can- 
not, by  virtue  of  their  general  powers  as  such,  make  any 
contract  which  at  law  will  bind  the  estate  and  authorize  a 
judgment  de  bonis  dccedcntis.  But  on  contracts  made  by 
them  for  necessary  matters  relating  to  the  estate,  they  are 
personally  liable,  and  must  see  to  it  that  they  are  reimbursed 
out  of  the  assets. 2  The  addition  of  the  word  "executor"  or 
"administrator"  in  such  a  contract  is  insufficient  to  relieve 
the  representative  of  this  personal  liability  j^  for  if  it  be 
understood  that  the  other  party  must  rely  upon  the  assets 
and  not  the  representative,  and  must  take  the  risk  of  their 
adequacy  upon  himself,  the  mutual  expression  should  be 
clearly  to  that  effect  ;  and  even  thus,  no  lien  would  arise  on 
the  creditor's  behalf,  but  the  covenant  of  the  executor  or 
administrator,  limited  to  the  extent  of  assets  in  his  hands, 
would  bind  him  personally  to  that  extent.* 

1  This   doctrine  applies   to  the   debt  that  he  can  thus  dispose  of  under  any 
incurred  by  the  representative  in  em-  circumstances.    But  as  to  compensation, 
ploying  counsel  to  advise  and  assist  him  etc.,  allowable  out  of  the  estate,  see  ac- 
in  the  discharge  of  his  duty.     Devane  counting,  post,  Part  VII. 
V.  Royal,  7  Tones  (N.  C.)  L.  426;  Bow-  That  an  executor  cannot  create  a  lien 
man  v.  Tallman,  2  Robert.   385;    Mc-  on  the  assets  for  a  debt  due  during  the 
Gloin  V.  Vanderlip,  27  Tex.  366;    Mc-  decedent's  lifetime,  see  Ford  v.  Russell, 
Mahon  v.  Allen,  4  E.  D.  Smith  (N.  Y.)  i  Freem.  Ch.  42;    Ga.  Dec.  Tart  II.  7; 
519.    Or  where  he  purchases  goods  for  James's  Appeal,  89  Penn.  St.  54. 
the  benefit  of  the  estate.     Harding  v.  2  pinkney  v.  Singleton,  2  Hill,  343; 
Evans,  3  Port.  221;    Lovell  v.   Field,  5  Miller  v.  Williamson,  5  Md.  219;   Sims 
Vt.  218.     An  executor  or  administrator  v.  Stilwell,  4  Miss.  176;   Jones  v.  Jen- 
has  no  power  to  liargain  with  an  attor-  kins,  2  McCord,  494;    McEldry  v.  Mc- 
ney  to  give  him  a  legal  interest  in  the  Kenzie,    2    Port.     33 ;    Underwood    v. 
estate  as  compensation   for  his  services  Millegan,  8  Ark.  254. 
so  as  thereby  to   bind  the  estate.     48  "  Hopkins  v.  Morgan,  7  T.  B.  Mon. 
Tex.  401;  57Cal.  238;  Austin  7a  Munro,  i;   Beaty  v.  Gingles,  8  Jones   L.  302; 
47  N.  Y.  360.    His  own  allowance  from  Litchfield  71.  Flint,  104  N.  Y.  5:43. 
the  court,  legacy,  share,  or  claim  is  all  *  Nicholas  v.  Jones,  3  A.  K.  Marsh. 

334 


CHAP.   1.]       representative's    TITLE    AND    AUTIKIRITV.       $  257 

§  257.   Lien  on  the  Assets  is  for   Representative   rather   than 
for  the  Person   dealing  Tvith  him ;    Estate   how  far  Answerable. 

—  Persons,  therefore,  who  deal  with  the  executor  or  admin- 
istrator acting  independently  in  such  capacity,  can  acquire 
no  lien  upon  or  right  to  proceed  immediately  against  the 
trust  estate  in  his  hands.  The  executor  or  administrator 
himself,  like  other  trustees,  appears  to  have  a  charge  or  lien 
in  his  favor  for  proper  expenses  and  charges  fairly  and  rea- 
sonably incurred  in  the  prosecution  of  his  trust ;  but  the 
privilege  does  not  extend  to  others  employed  by  him  or  to 
whom  he,  as  executor  or  administrator,  has  incurred  an 
individual  liability  to  pay.^  This  rule,  though  sometimes 
working  harshly,  is  founded  in  sound  policy,  and  better 
ensures  a  proper  appropriation  of  the  estate  which  the  dece- 
dent left  behind  him.  It  enables  the  broad  maxim  to  be 
applied,  that  for  false  and  fraudulent  representations  by  the 
executor  or  administrator,  and  upon  promises  which  he  had 
no  right  to  make,  the  property  of  the  decedent  cannot  be 
held  liable,  and  that  a  creditor's  collusion  with  that  object 
in  view  cannot  be  permitted  to  operate  to  his  own  advantage. 
But  the  estate  of  the  deceased  ought  to  be  made  respon- 
sible for  promises  and  engagements  made  by  the  representa- 
tive, which  he  had  the  legal  right  to  make,  or  where  in  law 
it  was  his  duty  without  a  promise  to  do  just  what  he  has 
promised  to  do.^  Whatever  the  methods  for  accomplishing 
this,  there  are  usually  found  some  practical  means  thus  avail- 
able ;  as,  for  instance,  in  the  case  of  funeral  charges,  and,  in 
general,  as  to  creditors  of  the  estate  so  far  as  the  assets, 
properly  administered  upon  equitable  principles,  may  suffice 
for  their  genuine  purpose  of  satisfying  all  just  claims  upon 

385;   Allen  V.   Graffins,  8  Watts,  397.  made    by  authority   of    law.      74   Ga. 

A  note  made  by  an  administrator,  as  486. 

such,  by  which  he  promises  to  pay,  '  Wms.  Exrs.  1792;  Kirl<man  v. 
etc.,  for  value  received  by  the  intestate  Boothe,  11  Beav.  273;  Corner  i'.  .Shew, 
and  his  heirs,  is  void  for  want  of  3  M.  «&  W.  350;  Fitzhugh  v.  Fitzhugh, 
consideration.  Ten  Eyck  v.  Vander-  11  Gratt.  300;  Montgomery  v.  Arm- 
pool,  8  Johns.  120.  And  see  37  Miss,  strong,  5  J.  J.  Marsh.  175;  Steele  ?■. 
526.  Georgia  act  of  1866  places  Steele,  64  Ala.  438;  Woods  z/.  Ridley, 
contracts  by  the  representative  for  27  Miss.  119,  149;  Ilarrell  z'.  Wilher- 
labor  and  service  for  the  benefit  of  the  spoon,  3  McCord,  486. 
estate  on  the  same  footing  as  contracts  -  Brown  v.  Evans,  15  Kan.  88. 

335 


§  258  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  estate.  Claims  are  settled  after  probate  rules  established 
for  general  convenience,  to  be  noted  hereafter ;  ^  and  accord- 
ing as  the  contract  arose  with  the  deceased  or  with  the  repre- 
sentative himself. 

§  25S.  The  same  Subject;  Negotiable  Notes,  etc.,  running  to 
the  Executor  or  Administrator ;  Other  Instances.  —  The  fore- 
going principles  apply  to  negotiable  instruments  which  the 
representative  executes.  Thus,  the  signature  "  A.  B.,  execu- 
tor," or  "A.  B.,  administrator,"  to  such  paper  cannot  bind 
the  decedent's  estate  directly,  even  though  specifying  that 
estate  by  name  ;  but  A.  B.  will  be  held  personally  liable.^  It 
has  been  held  that  an  individual  liability  is  not  thus  incurred 
unless  the  representative  has  assets,  or  forbearance  was  the 
consideration;^  and  yet,  giving  one's  own  obligation  ex- 
pressly payable  at  a  future  day  should  be  regarded  as  an 
admission,  perhaps  conclusive,  of  assets.*  Where  a  bill  is 
indorsed  to  certain  persons  as  executors,  and  they  indorse  it 
over,  they  become  personally  liable.^  As  the  current  of 
American  decisions  runs,  an  executor  or  administrator,  sign- 
ing or  indorsing  a  note  as  such,  does  not  escape  a  personal 
liability  thereon  unless  he  expressly  confines  his  stipulation 
to  payment  out  of  the  estate ;  ^  nor  is  parol  evidence  compe- 
tent to  establish  such  a  reservation,  though  the  note  be 
signed  officially.^  A  note  payable  to  "  B,  administrator  [or 
executor]  of  E.,"  is  the  property  of  B.  and  not  of  E.'s  estate.^ 

Within  the  principles  we  have  discussed,  it  may  be  asserted 
that,  while  a  bond  or  covenant  given  by  the  representative  as 

1  See  c.  5,  post,  as  to  remedies,  and  mitted  that  executing  such  note  is /rm4 
the  peculiar  rule,  e.g.,  as  to  funeral  ex-     facie  evidence  of  assets. 

penses.  *  Thompson  v.  Maugh,  3  Iowa,  342; 

2  Winter  v.  Hite,  3  Iowa,  142;  Yelv.  Childs  v.  Monins,  2  Br.  &  B.  460.  The 
II;  Wms.  Exrs.  1780;  Christian  v.  words  "value  received"  might  be  im- 
Morris,  50  Ala.  585;  East  Tenn.  Co.  portant  in  this  connection.  See  I  Cr. 
V.  Gaskell,  2  Lea,  742.  And  see  Sieck-  &  J.  231.  Or  promising  to  pay  with 
man  v.  Allen,  3  E.   D.   Smith  (N.  Y.)  interest.     2  Br.  &  B.  460. 

561.     This  rule  applies  though  the  new  ^  Buller,  J.,  in  King  v.  Thorn,  i  T.  R. 

promissory  note  be  given  in  renewal  of  489.     See  Snead  v.   Coleman,  7  Gratt. 

a  matured  promissory  note  executed  by  300. 

his  decedent.  Cornthwaite  v.  Nat.  Bank,  ^  Studebaker  M.  Co.  v.  Montgomery, 

57  Ind.  268.  74  Mo.  loi. 

3  Bank  of  Troy  v.  Topping,  9  Wend.  '  McGrath  v.  Barnes,  13  S.  C.  328. 
273.     In  s.  c.   13  Wend.   557,  it  is  ad-  ^  Saffold  v.  Banks,  69  Ga.  289. 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.       §  259 

such,  whereby  he  undertakes  to  assume  whatever  may  be  his 
decedent's  debts,  binds  him  as  an  "agent,"  so  called,  who 
has  no  principal,^  a  bond  given  by  him  which  is  expressed  to 
pay  out  of  the  assets  the  balance  due  in  settlement,  will  not 
bind  him  beyond  the  assets  received.^  And  where  he  gives 
his  personal  notes  simply  in  extension  or  renewal  of  those 
upon  which  his  decedent  was  originally  responsible,  the 
natural  import  of  the  transaction  is  not  an  extinguishment 
of  the  liability  of  the  estate  to  the  creditors'  disadvantage ; 
nor  certainly  so  as  to  deny  to  the  representative  himself  the 
means  of  securing  himself  from  the  estate.^  Giving  his  own 
note  or  obligation  for  a  debt  of  the  decedent  will  not  in  any 
case  exempt  the  estate  from  ultimate  liability  for  the  debt.^ 

On  the  other  hand,  the  recognition  by  the  executor  or 
administrator  of  a  claim  against  the  estate,  arising  subse- 
quent to  the  decedent's  death  and  upon  his  own  contract, 
will  give  it  no  additional  validity ;  for  it  is  not  the  estate  that 
shall  answer  directly  for  it  to  the  creditor,  but  the  representa- 
tive himself.^ 

Supposing  some  statute  of  limitations  to  have  debarred 
the  creditor  from  prosecuting  his  claim  against  the  estate ;  ^ 
a  promise  by  the  representative  to  pay  the  claim,  if  made  in 
writing,  whether  in  the  form  of  a  negotiable  note  officially 
signed  or  otherwise,  may  bind  him  personally  upon  the 
theory  of  a  sufficient  consideration  founded  in  the  possession 
of  assetsJ 

§  259.  Lien  on  the  Assets,  how  far  existing  for  the  Representa- 
tive's own  Immunity.  —  The  individual  obligation  which  the 
representative  necessarily  incurs  by  assuming  to  fulfil,  even 
in  the  name  of  his  office,  engagements  of  the  decedent,  serves 

1  Patterson  v.  Craig,  57  Tenn.  291.  ^  May  v.  May,  7   Fla.   207;   Davis  v. 

2  Allen  V.  Graffins,  8  Watts,  397.  French,  20  Me.  21;  Lyon  v.  Hays,  30 
And  see  58  Ind.  58.  Ala.  430  ;   Woods  v.   Ridley,  27  Miss. 

8  Peter   v.    Beverly,    10   Pet.    532;    i  119,149. 

How.  134.  ®  On  this  point,  see  posf,  c.  5. 

*  Douglas   V.    Fraser,  2  McCord  Ch.  ^  Oates  v.  Lilly,  84  N.  C.  643;    Mc- 

105;     Maraman    v.    Trunnell,  3    Met.  Grath  z/.  Barnes,  13  S.  C.  328.     And  see 

(Ky.)  146;  Dunne  v.  Deery,  40  Iowa,  Bacon  v.  Thorp,  27  Conn.  251 ;  §  255. 
251. 

337 


§  26o  EXECUTORS    AND    AnMINISTRATORS.  [PART  IV. 

as  a  caution  against  his  assuming  too  much,  or  undertaking 
more  on  behalf  of  the  estate  he  represents  than  the  assets  at 
his  command  fairly  warrant.  When,  however,  an  executor  or 
administrator  pays  a  debt  or  discharges  a  contract  which  con- 
stitutes in  reality  a  just  charge  against  the  estate  of  the  tes- 
tator or  intestate,  out  of  his  private  funds,  he  will  be  entitled 
to  an  allowance  for  the  same  in  his  accounts  ;  and  adminis- 
tration under  probate  and  equity  direction  supplies  a  sort  of 
lien  upon  the  assets  for  his  reimbursement.^ 

This  lien  upon  the  assets,  however,  if  such  we  may  term  it, 
does  not  secure  the  representative  for  liabilities  or  expenses 
incurred  outside  the  proper  scope  jf  his  official  duty.  Thus, 
if  he  chooses  to  warrant  title  to  the  purchaser  in  selling  as- 
sets, the  risk  which  he  assumes  thereby  is  his  own.^  And  the 
disallowance  in  his  accounts  of  expenses  incurred  and  losses 
sustained  through  culpable  negligence  or  bad  faith  puts  a 
practical  limit  to  his  reimbursement  out  of  the  assets.^ 

§  260.  This  Rule  of  Lien  applied  in  settling  Account  of  a  Rep- 
resentative Deceased,  Removed,  etc.  —  So,  too,  where  an  execu- 
tor or  administrator  pays  debts  of  the  decedent  out  of  his 
own  funds,  and  dies  or  is  removed  before  he  has  received 
assets  sufficient  to  reimburse  him,  he  or  his  own  representa- 
tive should  be  allowed  to  stand  in  the  place  of  the  creditor 
whose  demand  has  been  extinguished,  and  to  assert  the  de- 
mand against  the  successor  in  his  late  trust.'*  Circumstances 
may  exist  in  which  it  is  not  wrong  in  the  original  representa- 
tive, although  it  may  not  be  a  positive  duty,  to  make  advances 
for  the  benefit  of  the  estate  which  he  administers,  and  where, 
by  his  death  or  removal  from  office,  he  may  be  unexpectedly 
deprived  of  the  power  to  reimburse  himself.  Where  advances 
have  been  made  in  good  faith,  and  for  the  benefit  of  the 
estate,  they  in  some  form  become  a  charge  upon  the  estate 
in  the  hands  of  his  successor  in  the  trust,  whose  duty  it  is  to 

1  See  Woods  v.  Ridley,  27  Miss.  119,  ^  See  c.  5,  pos/,  as  to  the  represen- 
149.  tative's  liabilities;   also  posi,  Part  Vll., 

2  See  z.  post,  as  to  tiansfer  of  assets;  concerning  his  accounts. 
Stoudenmeier   v.   Williamson,    29   Ala.         *  Smith  v.   Haskins,  7  J.    J.   Marsh. 
558;    Lockwood  V.  Gilson,  12  Ohio  St.  502;    Munroe  v.  Holmes,  9  Allen,  244. 
526. 


CHAP.   I.J       representative's    TITLE    AND    AUTIIOKITV.       §   26 1 

pay  them  as  much  as  if  they  had  occurred  in  the  course  of 
his  own  administration.^  The  safer  and  the  usual  course, 
however,  is  for  an  executor  or  administrator  to  advance  noth- 
ing and  incur  no  expenditure  or  charge  beyond  the  value  of 
chattels  in  hand,  or  assets  as  actually  realized  ;  thus  relying 
simply  upon  his  Her  to  reimburse  himself,  or  else  his  con- 
temporaneous appropriation  of  chattels  instead,  by  way  of 
election  ;  in  which  case  the  final  settlement  of  his  accounts 
involves  a  mere  transfer  of  the  just  balance  or  residue  to  the 
successors,  and  avoids  the  disadvantage  of  an  active  pursuance 
of  remedies  against  the  latter.^ 

If  at  the  time  of  the  original  executor's  or  administrator's 
decease  or  removal  there  should  remain  personal  assets  in  his 
hands,  enough  may  be  retained  to  satisfy  the  balance  found 
due  on  an  accounting  of  his  administration.  Otherwise,  per- 
sonal assets  coming  to  the  hands  of  the  representative  de 
bonis  noil  are  justly  applicable  to  settling  this  balance ;  and, 
if  no  personal  assets,  real  estate  of  the  deceased  may  equi- 
tably be  reached  ;  the  difficulty  is  only  the  practical  one  as  to 
the  best  mode  of  thus  enforcing  the  charge  against  the  estate 
when  the  first  representative's  lien  is  wanting.^ 

§  261.  Assets  recovered  by  Representative  on  his  own  Con- 
tract enures  to  the  Estate.  —  Where  an  executor  or  administra- 
tor recovers  in  his  own  name  upon  a  contract  made  with  him 
personally  after  the  death  of  the  decedent,  respecting  the  es- 
tate or  for  money  received  by  the  defendant  for  the  use  of 


^  Hoar,  J.,  in  Munroe  v.  Holmes,  13  tends  only  to  the  assets  of  the  estate, 
Allen,  109.  In  Munroe  v.  Holmes,  and  the  court  cannot  make  an  allowance 
supra,  it  was  held  that  there  was  no  other  than  that  which  is  properly  charge- 
action  at  common  law  available  against  able  against  the  estate.  Clement  t'. 
the  administrator  de  bonis  noti  on  behalf  Hawkins,  16  Miss.  339. 
of  the  original  representative,  although  ^  See  Hoar,  J,  in  Munroe  v.  Holmes, 
the  amount  due  had  been  ascertained  13  Allen,  109.  And  as  to  approjiriating 
on  presentation  of  the  latter's  accounts,  notes  which  were  executed  to  one  in  his 
But  proceedings  in  the  probate  court  capacity  of  executor  and  administrator, 
were  allowed  under  statute  provisions  and  which  remained  uncollected  and 
relating  to  a  suit  on  an  administrator's  undisposed  of  during  his  lifetime,  see 
bond.  Maraman    v.  Trunnell,    3   Met.    (Ky.) 

2  The  power  of  the  probate  court  ex-  146. 

339 


§  264  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  estate  after  .such  death,  he  i.s  answerable  in   his  fiduciary 
capacity  for  the  amount  recovered,  as  for  assets.^ 

§  262.  The  Estate  should  not  derive  Unconscientious  Advan- 
tage, etc.  —  While,  as  we  shall  see,  a  decedent's  estate  is  not 
to  be  rendered  responsible  in  damages  for  torts  and  frauds 
committed  by  the  representative,  and  while,  moreover,  in  a 
sale  of  assets  the  rule  is  caveat  emptor,  it  would  appear  that 
an  estate  ought  not  to  derive  any  unjust  or  unconscientious 
advantage  from  the  representative's  misconduct. ^  One  should 
not  claim  a  right  in  behalf  of  the  estate  he  represents, 
founded  upon  the  fraud  of  the  decedent;^  nor  be  heard  to 
assert  for  his  justification  that  his  fraud  or  his  violation  of 
law  redounded  to  the  benefit  of  the  estate.* 

§  263.  "Whether  Admissions  by  Representatives  bind  the 
Estate.  —  Executors  or  administrators  by  their  admissions 
bind  the  estate.^  But  such  admissions  or  declarations  by  a 
representative  are  only  competent  evidence  as  to  his  own 
acts  after  he  became  clothed  with  the  trust,  and  do  not  bind 
the  estate  in  so  far  as  they  refer  to  what  the  decedent  told 
him  during  his  life.^  It  is  not  a  representative's  duty  to  vol- 
unteer disclosures  to  the  injury  of  the  estate.'^ 

§  264.  Representative's  Po-wer  over  Assets  whether  controlled 
by  Probate  or  Equity  Courts. —  It  is  held  that  the  executor's 
or  administrator's  power  of  disposing  of  assets  is  not  con- 
trolled or  suspended  by  the  mere  filing  of  a  bill  of  equity 
on  the  part  of  the  creditor  for  the  administration  of  the  es- 
tate ;  for  it  is  said  such  power  continues  until  there  has  been 
a  decree  in  the  suit.^     Bills  for  administration  of  assets  are 

1  Mowry  v.  Adams,   14   Mass.   327;  ^  Godbee  v.  Sapp,  53  Ga.  283. 
Smith  w.  Wilmington  Coal  Co.,  83  111.  498.  "^  As,  e.g.,  disclosures  which  might  ren- 

2  Able  V.  Chandler,  12  Tex.  88;  Cock  der  successful  a  lawsuit  pending  against 
V.  Carson,  38  Tex.  284.  the  testator  at    the    time  of  his  death, 

^  Armstrong  v.  Stovall,  26  Miss.  275.  and   against    his    representative    by  re- 

*  Crump  V.  Williams,  56  Ga.  590.  vivor.     Maddox  v.  Apperson,    14  Lea, 

^  Sample  v.    Liscomb,   18  Ga.    687.  596. 

And  they  may  release   witnesses    from  ^  Neeves  v.  Barrage,  14  Q.  B.  504; 

liability  to  the  estate.     Neal  v.  Lamar,  Wms.  Exrs.  942. 

18  Ga.  746. 


CHAP.  I.]       representative's    TITLE    AND    AUTHORITY.       §  2C5 

not  common  in  American  practice  ;  but  the  representative 
proceeds  upon  qualification  to  perform  his  duties  according 
to  the  terms  expressed  in  his  probate  credentials,  and  sub- 
ject to  the  conditions  of  his  probate  bond,  which  servos  as  se- 
curity to  those  interested  in  the  estate,  being  filed  in  the 
probate  registry.  Creditors  who  are  aggrieved  can  have 
ready  recourse  to  the  common-law  tribunals  ;  besides  which, 
various  local  statutes  provide  the  means  of  authenticating 
and  filing  their  claims  at  the  probate  office.^  Where  an 
executor  or  administrator  has  taken  possession  of  personal 
property  as  part  of  the  estate  of  his  decedent,  a  probate  court 
has  no  inherent  jurisdiction  to  compel  him  to  deliver  it  to 
the  owner  thereof,  upon  a  summary  application  of  the  owner  ;2 
nor  in  general  can  such  tribunals  interfere  with  the  regu- 
lar course  of  justice  before  the  common-law  tribunals.  Nor 
will  a  court  of  equity  interfere  usually  with  an  executor  or 
administrator  as  respects  the  due  administration  of  assets  in 
his  hands,  unless  there  is  reason  to  fear  some  probable  injury 
to  the  rights  and  interests  of  the  complainant.^ 

But  an  executor,  trustee,  or  other  fiduciary  cannot  have 
an  authority  conferred  upon  him,  not  in  some  measure  sub- 
ject to  the  control  and  supervision  of  the  probate  and  chan- 
cery tribunals,  as  in  compelling  accounts  and  passing  upon 
their  allowance  ;  and  should  a  testator  have  directed  other- 
wise, that  direction  must  be  disregarded.*  A  purely  arbitrary 
discretion,  independent  of  the  judicial  rules  which  govern 
the  settlement  of  estates,  is  not  to  be  exercised  by  an  executor, 
nor  is  the  testator  presumed  to  have  intended  conferring  it.^ 

§  265-  Interpleader,  etc.,  for  Instructions,  etc.,  by  the  Per- 
sonal Representative.  —  Executors  and  trustees,  by  bill  in  the 
nature  of  a  bill  of  interpleader,  may  take  the  advice  of  a 
court  of  chancery  upon  questions  connected  with  the  dis- 
charge of  their  duties.     But  the  interposition  of   the  court 

^  See  Part  V.,  post,  as  to  the  payment,  *  Holcomb    v.   Ilolcomb,    11    N.    J. 

etc.,  of  claims.  Eq.  281.     See  as  to  directing  for  a  con- 

'^  Marstun  7'.  Paulding,  10  Paige,  40;  test    concerning    a    gift    causa    mortis, 

Crawford  ?>.  Elliott,  i  Bailey,  206.  Wadsworth  v.  Chick,  55  Tex.  241. 

8  Ashburn  v.  Ashburn,  16  Ga.  213.  ^  Hull  v.  Hull,  24  N.  Y.  647. 


§  267  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

in  such  case  is  discretionary,  and  will  not  be  exercised 
except  in  matters  of  importance  involving  one's  own  course 
of  action. 1  An  administrator  cannot  resort  to  equity  as  a 
matter  of  course,  to  obtain  its  aid  and  instruction  in  the 
settlement  of  his  intestate's  estate,  but  only  where  there 
are  special  circumstances  involved  in  such  settlement  which 
justify  so  unusual  a  proceeding.^  And,  in  general,  no  execu- 
tor or  administrator  should  ask  for  instructions  upon  a  point 
as  to  which,  considering  the  actual  condition  of  the  estate, 
he  is  not,  and  probably  never  will  be,  embarrassed  in  the 
performance  of  his  duties.^ 

§  266.  Representative  not  a  Proper  Party  to  Suits  for  annul- 
ling a  Marriage. —  The  executor  or  administrator  is  not  the 
proper  representative  of  the  deceased  person  to  annul  his 
marriage.  Statutes  which  sanction  such  proceedings  leave 
it  rather  to  children  or  relatives  to  take  that  momentous 
responsibility.* 

§  267.  Vesting  of  Possession  ;  Chattels  Real,  etc.*  as  distin- 
guished from  Chattels  Personal.  —  A  distinction  is  drawn  in 
the  books  between  chattels  personal  and  chattels  real,  as 
to  the  vesting  of  possession  in  the  representative.  The 
property  of  personal  chattels  draws  to  it  the  possession,  and 
hence,  as  to  all  such  property  of  the  deceased,  wherever 
situated,    the    representative    acquires    possessory    title    at 

1  Crosby  v.  Mason,  32  Conn.  482;  others  should  not  seek  the  construction 
Parker  v.  Parker,  119  Mass.  478;  An-  of  a  will  or  instructions  as  to  future 
nin  V.  Vandoren,  14  N.  J.  Eq.  135;  remote  contingencies  disconnected  with 
Goodhue  v.  Clark,  37  N.  H.  525;  a  continuing  duty  on  their  part.  Minot 
Houston  V.  Howie,  84  N.  C.  349;  v.  Taylor,  129  Mass.  160;  Powell  v. 
Woodruff  z/.  Cook,  47  Barb.  304;  Shew-  Demming,  22  Hun,  235. 

make  v.  Johnson,  57  Ga.  75.     In  Eng-  ^  Rexroad  v.  Wells,  13  W.  Va.  812. 

land  the  stat.   22  &  23  Vict.  §   30,  ex-  And  see  further,  Putnam  v.  Collamore, 

pressly  confers  the  right  upon  executors  109  Mass.  509.   There  are  circumstances 

or  administrators  to  apply  by  petition  to  of  embarrassment  under  which  an  ad- 

a  court  of  chancery  for  opinion,  advice,  ministrator  de  bonis  noit  or  an  admin- 

and  direction   respecting    the    manage-  istrator  with  will  annexed  may  properly 

ment  or  administration  of  the  property,  ask    for  instructions  as   to    his  course. 

Wms.  Exrs.  1909.  Sellers  v.  Sellers,  35  Ala.  235. 

2  Pitkin  V.  Pitkin,  7  Conn.  315;  Mc-  *  Pengree  v.   Goodrich,  41    Vt.  47; 
Neill  V.  McNeill,  36  Ala.  109;   Beers  v.  Schoul.  Hus.  &  Wife,  §  13. 
Strohecker,  21  Ga.  442.     Executors  and 


CHAP.  I.]       representative's  TITLE  AND  AUTHORITY.       §  268  a 

once.^  But  as  to  chattels  real,  leases,  and  other  chattel 
interests  in  things  immovable,  including  tenancies  at  will  or 
from  year  to  year,  of  these  the  representative,  though  poten- 
tially owner,  is  not  deemed  to  be  in  possession  before  entry.''^ 
The  reversion  of  a  term,  however,  which  the  testator  granted 
for  part  of  the  term,  is  held  to  be  in  the  executor,  immedi- 
ately upon  the  death  of  the  testator ;  -^  and  it  would  seem 
that  the  rule  of  law  which  makes  the  title  of  administrator 
as  to  personal  chattels  relate  back  to  the  death  of  the  intes- 
tate, so  as  to  enable  him  to  recover  for  mesne  injuries  or 
their  conversion,  applies  likewise  to  chattels  real,  only  that 
he  must  first  enter.*  This  requirement  of  entry  appears  to 
be  raised,  therefore,  for  his  benefit,  so  as  not  to  force  him  to 
assume  the  liabilities  of  tenant. 

§  268.  Whether  the  Representative  may  act  by  Attorney. 
—  In  many  transactions  the  legal  representative  manages 
the  estate  with  the  aid  of  some  attorney  of  his  choice.  But 
the  rule  is,  that  one  delegated  to  a  trust  cannot  delegate  that 
trust  to  another ;  so  that  ultimately  the  official  discretion 
and  responsibility  become  his  own.^  A  power  of  disposition 
given  under  a  will  to  executors,  which  is  a  personal  trust, 
cannot,  therefore,  as  a  rule,  be  executed  in  the  name  of  an 
attorney.^  Nor  can  the  representative,  by  a  power  of  attor- 
ney which  no  will  has  authorized,  transfer  the  entire  manage- 
ment of  the  estate  which  he  represents  so  as  to  bind  creditors 
and  interested  partiesJ 

§  268  a.  No  Property  in  the  Body  of  the  Intestate.  —  An 
executor  or  administrator  has,  as  a  rule,  no  official  interest  in 
or  control  over  the  body  of  his  decedent,  and  apart  from  some 
enabling  statute  he  cannot  maintain  an  action  for  injury  or 

1  Wentw.  Off.  Ex.  228,  14th  ed.;  8  Port.  (Ala.)  343;  Bird  z/.  Jones,  5  La. 
Wms.  Exrs.  635;   Doe  v.  Porter,  3  T.  R.     Ann.  645. 

13;  Taylor  Landl.  &  Ten.  §  434.  ^  ^  Qq    ^^  b-    Wms.  Exrs.  943,  951, 

2  lb.     And  see  supra,  §  223.  and  Perkins's  note;    Williams  v.  Mat- 

*  Trattle  z'.  King,  T.  Jones,  170.  locks,  3   Vt.    189;    Berger  v.   Duff,    4 

*  Barnett  v.  Guildford,  1 1  Ex.  20,  32.     Johns.  Ch.  368. 

'  Supra,  §  109;    Driver  v.   Riddle,  ^  Neal  v.    Patten,   47  Ga.  73.      See 

§  321- 
343 


§  268  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

mutilation  to  the  corpse,  though  he  might  sue  for  correspond- 
ino-  injury  to  the  garments  which  the  decedent  wore  when  he 
perished.^ 

1  Griffith  V.  Charlotte  R.,  23  S.  C.  25.     the  "  right  of  property  "  and  not  rights 
Cf.   §§  211,   283.      We   here  consider     as  concern  a  burial. 

344 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §  269 


CHAPTER   II. 

COLLECTION    OF    THE    ASSETS. 

§  269.  General  Duty  of  Executor  or  Administrator  to  collect 
the  Effects,  etc. —  It  is  incumbent  upon  every  executor  or 
administrator,  upon  the  completion  of  his  appointment,  to 
take  prudent  measures  for  bringing  all  the  personal  property 
of  the  deceased  for  which  he  may  be  legally  answerable  into 
his  actual  control  and  possession.  And  there  is  no  function 
of  his  office  which  calls  for  such  energy,  promptness,  and 
discretion  in  its  discharge  as  this.  Collection  precedes  in 
natural  order  the  settlement  of  debts  and  charges,  and  is 
the  primary  essential  of  prudent  administration.  Whoever 
may  have  been  the  custodian  of  all  or  particular  goods  and 
chattels  of  the  deceased,  the  duly  qualified  legal  representa- 
tive should  cause  him  to  attorn  or  surrender  possession,  in 
order  that  the  estate  may  derive  the  full  benefit  of  the 
assets  to  which  it  is  entitled.  Corporeal  things,  and  the 
corporeal  muniments  of  title,  the  personal  representative 
should  seek  to  procure.  And  as  to  debts  and  incorporeal 
rights,  evinced  or  not  evinced  by  instruments  in  writing,  the 
duty  of  collection  on  behalf  of  the  estate  applies  in  a  corre- 
spondent sense ;  though  here  the  duty  of  reducing  to  posses- 
sion naturally  imports  the  collecting  on  demand,  by  suit  or 
otherwise,  whatever  may  be  due,  and  realizing  the  value  of 
the  thing  after  the  method  appropriate  to  its  nature.  No 
creditor,  and  not  even  the  devisee,  heir,  or  surviving  spouse, 
is  entitled  to  the  possession  of  personal  property  left  by 
the  decedent,  which  constitutes  lawful  assets,  as  against  the 
claim  of  the  duly  qualified  executor  or  administrator.^ 

It  is  the  duty  and  right,  therefore,  of  the  executor  or 
administrator,  as  soon  as  he  shall  have  lawfully  taken  upon 

'  See  Page  v.  Tucker,  54  Cal.  121. 

345 


§   270  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

himself  the  execution  of  his  office,  to  collect  and  possess  him- 
self of  all  the  assets,  so  that  he  may  be  enabled  to  meet  the 
payment  of  the  debts  against  the  estate  as  they  shall  be  pre- 
sented. Not  being  permitted  to  delay  collecting  the  assets 
until  he  can  first  ascertain  the  amount  of  the  debts,  the 
whole  of  the  assets,  for  aught  he  can  know,  may  be  wanted 
for  paying  them  ;  and  hence  it  becomes  his  duty  to  collect 
them  with  all  reasonable  diligence ;  and  the  law  supplies  him 
with  the  means  adequate  for  that  end.^  The  personal  prop- 
erty vests  in  the  representative  for  paying  debts  immediately, 
and  more  remotely  legacies  or  distributive  shares ;  and,  in  a 
word,  for  administration  according  to  the  requirements  cf 
law,  and,  it  may  be,  the  provisions  of  the  decedent's  last  will. 
His  duty  to  collect  with  reasonable  care  and  diligence  is 
quite  independent  of  any  demand  or  request  from  creditors 
or  distributees  of  the  estate.^ 

§  270.  statute  Methods  for  discovering  Assets  in  'ud  of  the 
Representative's  Pursuit.  —  Some  of  our  American  legislatures 
have  provided  a  convenient  and  inexpensive  means  of  aiding 
the  representative  in  his  pursuit  of  assets,  in  the  nature  of  a 
summary  process  in  the  probate  court  for  citing  in  any  sus- 
pected party  and  examining  him  upon  oath  before  the  tribu- 
nal which  issued  the  letters.  Thus,  a  Massachusetts  statute 
provides  that  upon  complaint  against  any  person  suspected 
of  having  fraudulently  received,  concealed,  embezzled,  or  con- 
veyed away  any  money,  goods,  effects,  or  other  estate,  real 
or  personal,  of  the  deceased,  the  court  may  cite  such  sus- 
pected person  to  appear  and  be  examined  upon  oath  touching 
the  matter  of  the  complaint.  If  the  person  so  cited  refuses 
to  appear  and  submit  to  examination,  or  to  answer  the  ques- 
tions lawfully  propounded  to  him,  the  court  may  commit  him 
to  jail,  there  to  remain  in  close  custody  until  he  submits. 
The  interrogatories  and  answers  shall  be  in  writing,  signed 
by  the  party  examined,  and  filed  in  court. ^ 

1  See  Eisenbise  I/.  Eisenbise,  4  Watts,  'Mass.  Pub.  Stats,  c.  133;  Arnold 
134,  136.  V.  Sabin,  4  Cush.  46;   Milner  v.  I.eish- 

2  Harrington  v.  Keteltas,  92  N.  Y.  man,  12  Met.  320.  Similar  statutes  are 
40;   Grant  v.  Reese,  94  N.  C.  720.  found   in   other   New  England   States 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   27I 

The  remedies  thus  afforded  may  enable  the  executor  or 
administrator  to  push  inquiries,  advantageous  as  a  preliminary 
to  instituting  proceedings,  civil  or  criminal,  before  the  usual 
tribunals,  besides  vindicating  his  own  zeal  in  seeking  out  the 
property.  And  so  favored  is  this  summary  inquisition,  in  con- 
nection with  the  settlement  of  estates,  that  parties  interested 
may  themselves  invoke  it  against  the  executor  or  administra- 
tor, where  his  own  conduct  lays  him  open  to  a  corresponding 
suspicion.^  It  is  to  be  observed,  however,  that  the  statute 
authority  usually  extends  only  to  the  propounding  of  lawful 
interrogatories,  and  compelling  the  person  cited  to  answer 
them  ;  the  suspected  person  is  not  to  be  deprived  of  the 
assistance  of  counsel  in  making  his  answers  ;2  nor  can  the 
process  itself  avail  beyond  procuring  a  disclosure  of  facts  to 
serve  as  the  basis  of  proceedings  elsewhere,  unless,  as  might 
well  be  anticipated,  the  person,  if  liable  and  in  actual  posses- 
sion, chooses  to  surrender  without  further  resistance.*^  The 
New  York  statute,  however,  besides  aiming  at  this  compul- 
sory production  of  evidence,  undertakes  that  the  procedure 
shall,  where  the  evidence  justifies  it,  result  further  in  a  de- 
cree requiring  the  cited  person  to  deliver  possession  sum- 
marily to  the  complainant,  or  else  to  furnish  security  to  abide 
by  the  decision  of  the  proper  tribunal,  and  pay  all  damages  in 
case  the  suit  be  determined  against  him.* 

§  271.  Special  Statute  Proceedings  against  Intermeddlers  with 
the  Assets,  etc.  —  In  some  States,  under  the  statute,  an  execu- 
tor or  administrator  may  file  a  bill  in  chancery  against  one 
who  intermeddles  with  or  embezzles  goods  of  the  estate,  in- 


With  reference  to  issuing  a  search  war-  tion.     O'Dee    v.    McCrate,    7    Greenl. 

rant  under  New  York  statute,  see  Public  467. 

Administrator  v.  Ward,  3    Bradf.  244.  *  Redf.  (N.  Y.)   Surr.  Tract,  c.    17, 

The  surrogate  may  cite  on  reasonable  §  3.     The   procedure  under    this  Nevv 

grounds.    2  Dem.  296,  396.      See  also  York  statute  assumes  that  the  petitioner 

Missouri  statute.     Eans  v.  Eans,  79  Mo.  for  a  citation  shows  reasonable  grounds 

53.  for  the  inquiry.     The   statute  has  been 

1  See  language  of  statute,  supra.  pronounced  unconstitutional  in  the  su- 

2  Martin  v.  Clapp,  99  Mass.  470.  preme  court  (not  the  highest  tribunal  iu 
'Lapse  of  time  is  not  readily  regarded  the  State).     Beebe,  Matter  of,  20  Hun, 

as  interposing  a  bar  to  such  exaniina-  462. 

347 


§  2/2  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

Stead  of  proceeding  at  law.^  And  the  common-law  remedy 
against  a  defendant  as  executor  dc  son  tort,  which  often  ren- 
dered one  Hable  for  large  debts  where  only  a  trivial  amount 
of  property  had  come  into  his  possession,  is  also  found  super- 
seded in  some  States  by  legislative  acts,  which  provide  that, 
an  action  may  be  brought  for  the  benefit  of  the  estate  to  re- 
cover double  the  amount  or  value  of  the  property  which  may 
have  been  alienated  or  embezzled  by  any  unauthorized  person 
before  the  grant  of  letters  testamentary  or  of  administration ; 
only,  however,  on  proof  of  wrong  motive  in  the  defendant.^ 

§  272.  Po-wrer  of  Executor  or  Administrator  to  enter  Premises, 
force  Locks,  etc.,  in  Pursuit  of  Assets.  —  The  old  writers  define 
with  excessive  caution  the  limitations  under  which  the  per- 
sonal representative  may  enter  premises,  force  locks,  and  the 
like,  in  the  pursuit  of  assets  for  which  he  is  answerable. 
Within  a  convenient  time  after  the  testator's  death,  or  the 
grant  of  administration,  as  they  admit,  the  executor  or  admin- 
istrator has  a  right  to  enter  the  house  descended  to  the  heir, 
in  order  to  remove  the  goods  of  the  deceased  ;  provided,  as 
they  add,  he  do  so  without  violence  —  as  if  the  door  be  open, 
or  at  least  the  key  be  in  the  door.  He  has  also  a  right,  they 
observe,  to  take  deeds  and  other  writings,  relative  to  the  per- 
sonal estate,  out  of  a  chest  in  the  house  if  it  be  unlocked  or 
the  key  be  in  it.^  But,  they  add,  although  the  door  of  en- 
trance into  the  hall  and  parlor  be  open,  he  cannot  justify  forc- 
ing the  door  of  any  chamber  to  take  the  goods  contained  in 
it ;  but  is  empowered  to  take  those  only  which  are  in  such 
rooms  as  are  unlocked,  or  in  the  door  of  which  he  shall  find 
the  key.^  Nor,  they  say,  has  he  a  right  to  break  open  even 
a  chest.^ 

These  are  ancient  authorities,  relating  chiefly,  if  not  alto- 
gether, to  controversies  with  the  heir  who  occupies  the  dwell- 
ing-house of  the  decedent ;   and    modern  adjudication    upon 

1  Thorn   v.  Tyler,  3   Blackf.  (Ind.)  »  Went.  Off.  Ex.  81,   202,  14th  ed.; 

504;    Hensley  v.  Dennis,  i  Ind.  471.  Toller,  255. 

■■^  Roys  V.   Roys,    13  Vt.    543.     The  *  lb. 

common-law  right  of  suing  in  trespass  ^  lb.  These  authorities  may  be  found 

or  trover  is  not  otherwise  restrained  by  cited,  Wms.  Exrs.  926. 
this  statute.     lb. 


CHAP.  II.]  COLLECTION    OF    THE    ASSETS.  §  2/2 

these  and  collateral  points  appear  to  be  wanting;.  Yet  the  case 
of  one's  proceeding  upon  premises  occupied  by  the  deceased, 
to  take  an  inventory,  to  procure  possession  of  the  goods  and 
effects,  or  even,  as  preliminary  to  all  probate  authority,  to 
search  for  a  will,  is  of  constantly  familiar  occurrence.  Such 
acts  are  often  highly  prudent,  and  indeed  essential  to  be 
performed.  The  good  judgment  and  delicate  discretion  of  all 
the  parties  concerned,  each  being  desirous  to  manifest  his 
honest  intent,  furnish  the  best  and  probably  the  usually  ac- 
cepted assurance  that  all  is  lawfully  and  properly  done  ;  and 
to  expect  that  a  missing  key,  a  forgotten  combination,^  an 
unruly  lock,  shall  needs  baffle  a  search  which  can  only  be  ad- 
vantageous when  thorough,  and  that  all  concerned  must  be 
driven  on  slight  obstruction  into  the  courts,  instead  of  the 
nearest  locksmith's,  seems  absurd.  It  may  well  be  presumed 
in  these  days  that  a  deceased  person  of  fortune  has  left  some 
of  his  property,  if  not  a  will  disposing  of  it  all,  in  some  place 
where  those  who  survive  him  cannot  lay  hands  as  readily 
upon  it  as  he  might  have  done  when  alive  ;  and  while  his 
own  lock  imported  exclusion  to  all  the  world  while  he  was 
owner,  it  does  not,  we  apprehend,  on  his  death  import  exclu- 
sion as  against  those  on  whom  the  title  may  have  devolved  in 
consequence,  nor  so  as  to  prevent  due  ascertainment  of  the 
facts  relating  to  that  devolution  of  title.  Indeed,  for  this  exi- 
gency the  controlling  principle  appears  to  be,  as  in  bailments 
and  trusts  generally,  that  reasonable  diligence  and  prudence 
should  be  pursued  by  all  concerned  for  the  welfare  of  the 
estate,  according  to  the  circumstances,  and  genuine  good 
faith  under  all  circumstances. 

It  is  submitted,  therefore,  that  as  to  the  right  of  entering 
premises,  forcing  locks,  and  the  like,  the  case  of  executor  or 
administrator  after  qualification  differs  not  fundamentally 
from  that  of  bailee,  custodian,  unqualified  representative,  or 
suitable  family  representative;  but  that  (i)  the  purpose 
should  be  a  suitable  one,  —  as  to  make  an  inventory  or  pre- 
liminary schedule,  or  to  search  for  a  will,  or  to  take  a  lawful 

1  For  combination  locks  are  a  modern  contrivance  suggesting  novel  methods 
as  to  a  prudent  search  of  the  receptacle. 

349 


§  272  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

custody  whether  temporary  or  permanent ;  and  that  (2)  this 
purpose  should  be  executed  with  honesty  and  reasonable  pru- 
dence. The  application  of  the  rule  differs,  however,  as  the 
proceeding  on  behalf  of  the  estate  proves  to  be  resisted  or 
not  by  others  in  interest  and  in  possession  of  the  premises 
or  locked  receptacle.  Where  there  is  no  such  resistance,  it 
would  appear  that,  subject  to  this  rule  of  prudence  and  good 
faith,  locks  afford  no  decisive  obstacle  to  the  prosecution  of 
one's  duty  in  the  premises,  nor  necessarily  require  a  court  to 
interpose  its  formal  sanction  ;  for  while  a  custodian  may 
usually  leave  locked  premises  and  locked  chests  as  they  are, 
for  a  time  and  pending  judicial  delays,  it  would  under  some 
circumstances  be  highly  perilous  to  do  so.  Where,  how- 
ever, others  in  interest  and  actual  possession,  and  not  mere 
intruders,  resist  a  representative's  proceedings,  and  the  lock 
is  not,  so  to  speak,  a  casual  obstruction  left  by  the  deceased, 
but  their  own  as  against  him,  doubtless  the  representative, 
qualified  or  unqualified,  the  bailee,  or  family  representative, 
should  proceed  with  far  greater  reserve  ;  though  to  desist  and 
resort  to  the  courts  does  not  even  thus  necessarily  follow. 
Something  depends,  moreover,  upon  one's  situation  with  ref- 
erence to  his  decedent's  chattels  ;  as  being  already  invested 
with  a  bailment  custody,  for  instance,  or  as  pursuing  the 
search  upon  neutral  premises.  Thus,  it  is  decided  that  no 
one  in  possession  of  a  locked  box  belonging  to  the  estate  has 
any  right  to  compel  the  qualified  representative  to  give  him 
a  schedule  of  its  contents  or  to  impose  other  unreasonable 
preliminaries  to  its  surrender ;  and  it  seems  that  locked  or 
unlocked  the  box  should  be  passed  over.^ 

The  passages  from  our  earlier  writers  have  a  strict  refer- 
ence, therefore,  only  to  the  executor  or  administrator  who 
comes  in  collision  with  that  especial  favorite  of"  the  old  com- 
mon law,  the  inheritor  of  the  land.  The  representative,  in 
other  words,  cannot  force  his  way  rudely  against  the  heir's 
wishes  to  take  goods  and  chattels  from  the  lands  which  have 
descended  to  the  latter,  breaking  locks  as  he  goes;  though 
unquestionably  the  representative  must  take  them  or  recover 

'  See  Cobbett  v.  Glutton,  2  C.  &  P.  471. 


CHAP.    II.]  COLLECTION    OF    THE    ASSETS.  §  274 

them  by  suit  or  without  it.^  In  any  event,  the  executor  or 
administrator  must  not  unreasonably  defer  the  duty  of  seek- 
ing possession. 

§  273.  Duty  to  pursue  or  collect  depends  upon  Means  at  Rep- 
resentative's Disposal.  —  The  duty  of  an  executor  or  adminis- 
trator to  pursue  and  recover  chattels  depends  in  a  great  meas- 
ure upon  the  means  at  his  command  for  doing  so  ;  and  the 
same  may  be  said  with  reference  to  collecting  dues  to  the 
estate.  Whether  slender  assets  shall  be  used  in  litijration  for 
procuring  personal  property  adversely  held,  or  in  realizing 
doubtful  claims,  the  rule  of  prudence  must  decide  ;  but  it  is 
certain  that  the  representative  of  an  estate  is  not  bound  to 
litigate  or  to  undertake  the  enforcement  of  doubtful  rights  on 
behalf  of  the  estate  out  of  his  own  means  ;  and  if  kindred, 
legatees,  or  others  interested  in  prosecuting  the  right,  think 
the  effort  worth  making,  they  should  at  least  offer  to  indem- 
nify the  representative  against  the  cost.^ 

§  274.  Duty  to  pursue  or  collect  depends  also  upon  Sperate 
or  Desperate  Character  of  the  Claims.  — The  duty  to  pursue  or 
collect  depends  largely,  too,  upon  the  sperate  or  desperate 
character  of  the  claim  itself ;  as  to  whether,  for  instance,  the 
title  of  the  deceased  to  such  a  corporeal  thing  or  muniment 
can  be  clearly  established  against  the  adverse  possessor  or 
the  reverse  ;  or  again,  whether  such  a  debt  or  claim  is  prob- 
ably collectible  or  not,  considering  the  debtor's  own  solvency. 
A  representative  is  not  chargeable  for  assets,  without  refer- 
ence to  the  fact  whether  they  were  good,  doubtful  or  desper- 
ate at  the  time  when  he  assumed  the  trust,  nor  in  any  case, 
aside  from  the  question  of  delinquency  or  culpable  neglect 
on  his  part  in  realizing  their  value  or  procuring  them  ac- 
cording to  the  means  at  his  disposal.^     No  executor  or  ad- 

^  If  the  representative  be  remiss  in  "  Griswold  v.  Chandler,  5  N.  H.  492; 
removing  the  goods  within  a  reasonable  Andrews  v.  Tucker,  7  Pick.  250;  San- 
time,  the  heir,  it  is  held,  may  distrain  born  v.  Goodhue,  8  Fost.  48;  Ilepburn 
them  as  damage  feasant.  Plowd.  280,  v.  Hepburn,  2  Rradf.  (N.  Y.)  74. 
281;  Cro.  Jac.  204;  Went.  Off.  Ex.  "Cook  v.  Cook,  29  Md.  538;  Pool, 
202;    Wms.  Exrs.  927.  Succession  of,  14  La.  Ann.  677. 


§  2/6  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

ministrator  is  bound  to  sue  a  worthless  debt,  but  ordinary 
care  and  diligence  is  the  true  criterion  of  his  duty.^ 

§  275.  Duty  to  pursue  or  collect  depends  also  upon  Represen- 
tative's Means  of  Knowledge.  —  The  duty  to  pursue  or  collect 
depends  also  upon  the  means  of  knowledge  possessed  by  the 
representative.  Thus,  an  executor  or  administrator  cannot 
be  charged  with  a  right  of  action  in  his  decedent,  when 
knowledge  of  the  right  was  never  brought  home  to  himself, 
nor  does  he  become  chargeable,  except  with  reference  to  the 
claim  and  the  condition  of  the  estate,  when  such  knowledge 
reached  him.^ 

§  276.  Legatees,  Creditors,  etc.,  have  no  Right  to  hold  against 
Representative.  —  Such  is  the  personal  representative's  au- 
thority over  the  assets  that  until  he  has  by  his  acts  and 
conduct  made  a  virtual  transfer  of  title  to  a  legatee  or  other 
party  in  interest,  such  interest  cannot  be  set  up  against  him. 
Where,  therefore,  the  residuary  Jegatee  or  next  of  kin  is  suf- 
fered to  remain  in  possession  of  personal  property  of  the 
deceased,  pending  a  final  settlement  of  the  estate,  he  is  pre- 
sumably a  mere  bailee  of  the  property  for  the  personal  rep- 
resentative, and  is  liable  to  be  called  upon  to  surrender  it, 
as  the  course  of  administration  may  require.^  And  a  pay- 
ment made  by  a  debtor  of  the  estate  to  any  one,  even  to  the 
residuary  legatee  or  next  of  kin,  is  a  mispayment,  and  from 
such  person  the  representative  may  recover  it.^  A  cred- 
itor's claim  against  the  estate  is  preferred  to  that  of  kindred 
or  legatees  ;  and  yet  not  even  a  creditor  has  the  right  to 
take  possession  of  assets  for  the  purpose  of  either  securing 
or  paying  himself  the  debt  due  to  him  ;  nor  can  he,  after 
having  obtained  possession,  withold  it  from  the  representa- 
tive unless  the  possession  was  obtained  for  that  purpose,  by 

1  See  Smith  v.  CoUamer,  2  Dem.  147.  he  ought   to   give   some  good   excuse. 

A  claim  which  is  already  outlawed  need  88  N.  C.  416.     See  §  308. 

not  be  prosecuted.     Patterson  z/.  Wads-  -^  Sarah    v.    Gardner,    24  Ala.    719; 

worth,    89    N.  C.    407.      That    a    debt  Lukton  w.  Jenney,  13  Pet.  381. 

might  have  been  collected  is  not  con-  *  Carlisle  v.  Burley,  3  Greenl.  250. 

elusive  against  the  representative.     An-  *  Eisenbise  z/.  Eisenbise,  4  Watts,  1 34. 
derson  v.  Piercy,  20  W.  Va.  282.     But 


CHAP.  II.]  COLLECTION    OF    THE    ASSETS.                          §  2// 

an  agreement  with  the  deceased   during   his   lifetime  ;  for, 

otherwise,  the  just   order   for  payment  of   debts  would    be 
defeated.^ 


§  277.  Suing  to  recover  Assets;  Actions  founded  in  Contract, 
Duty,  etc.,  survive.  —  To  come  now  to  the  representative's  suit 
for  recovering  assets.  From  very  early  times  the  rule  has 
been,  that  personal  actions  which  are  founded  upon  any  con- 
tract, debt,  covenant,  or  the  obligation  to  perform  a  legal 
duty,  survive  the  person  entitled  in  his  lifetime  to  sue,  so 
that  the  right  of  action  passes,  upon  the  creditor's  death,  to 
his  executor  or  administrator.^  Hence,  at  our  common  law, 
the  personal  representative  has  the  right  of  action  to  recover 
all  debts  due  to  the  deceased,  whether  debts  of  record,  as 
judgments  or  recognizances,  or  debts  due  on  bonds  and  other 
contracts  under  seal,  or  debts  due  on  simple  contracts  and 
simple  promises,  oral  or  written,  which  are  not  under  seal.^ 
Some  exceptions  to  this  rule  which  appear  to  have  once  pre- 
vailed were  removed  by  the  operation  of  statutes  passed 
before  or  during  the  reign  of  Edward  III.,  and  long  anterior 
to  the  establishment  of  the  English  colonies  in  America.* 

It  is  said  that  the  executor  or  administrator  so  completely 
represents  the  deceased  in  all  such  rights  of  action  that  he 
may  enforce  the  obligation,  notwithstanding  the  contract  be 
written  out  and  makes  no  reference  to  him.  Thus,  if  money 
be  expressly  payable  to  B.,  the  right  to  recover  payment  sur- 
vives by  implication  to  B.'s  representative;  and  though  the 
writing  should  not  only  omit  all  reference  to  executors  and 
administrators,  but  promise  payment  specifically  to  "  B.  or 
his  assigns,"  B.'s  executor  or  administrator  may  sue  upon  it ; 
for  a  creditor  is  not  presumed  to  have  assented  that  a  debt 


1  lb.  78;   Owen  Z'.  State,  25  Ind.  107;  Bailey 

2  I  Saund.  216  a;  stat.  31  Edw.  IIL,  v.  Ormsby,  3  Mo.  580. 

c.  II;   Wms.  Exrs.  786;    Lee  z/.  Chase,  *  See  as  to  action  of  account,  stats. 

58  Me.  432.  I  Edw.  I.,  Stat,  l,  c.  3;   25  Edw.  III.,  c. 

8  Allen  V.  Anderson,  5   Hare,  163;  5;    31    Edw.  III.,   c.    il;    Wms.   Exrs. 

Wms.  Exrs.  786;  Wentw.  Off.  Ex.   159,  786.     A  bond  or  covenant  to  indemnify 

14th  ed.;   Carr  v.  Roberts,  5  B.  &  Ad.  survives  to  the  representative.     Carr  v. 

Roberts,  5  B.  &  Ad.  78. 

353 


§  279  EXECUTORS    AND   ADMINISTRATORS.  [PART  IV. 

owing  him  shall  be  lost  to  his  estate  if  he  dies  before  receiv- 
ing payment.^ 

§  278.  Survival  of  Actions  founded  in  Contract;  Exceptions 
to  Rule.  —  To  the  rule  that  every  personal  action  founded 
upon  a  contract  obligation  shall  survive  to  the  personal 
representative,  exceptions  exist,  deducible  from  the  reason  of 
the  contract  relation  itself.  Thus,  where  purely  personal 
considerations  are  of  the  foundation  of  the  contract,  as  in  the 
case  of  principal  and  agent,  or  master  and  servant,  the  death 
of  either  party  puts  an  end  to  the  relation  and  its  incident 
obligations. 2 

And  wherever  the  contract  right  is  by  plain  intendment 
coterminous  with  the  decedent's  life,  or  dependent  upon  some 
condition  which  necessarily  fails  by  reason  of  his  death,  the 
representative  can  take  no  succeeding  advantage  under  the 
contract,  but  at  the  utmost  only  such  advantage  as  may  have 
accrued  to  the  decedent  during  his  lifetime,  and  was  not 
actually  enjoyed  by  him.^  Life  insurance  contracts,  too,  may 
from  their  very  nature  be  so  framed  that  the  money  shall, 
upon  the  death  of  the  person  insured,  enure  directly  to  the 
benefit  of  particular  survivors,  and  not  his  general  estate  ; 
while,  notwithstanding,  the  representative  might  be  pro 
fot'jua  a  nominal  party  to  the  suit  on  the  beneficiary's  behalf 
to  recover  the  money.* 

§  279.  Actions  founded  in  an  Injury  to  Person  or  Property 
died  -with  the  Person  at  Common  Law  ;  Later  Variations  of  this 
Rule.  —  But  as  to  actions  founded,  not  in  contract,  but  in 
some  injury  done  either  to  the  person  or  the  property  of 
another,  and  for  which  only  damages  are  legally  recoverable 

1  Hob.  9;   Wentw.  Off.  Ex.  215,  14th  2  WjUgs^   j^  j^   Farrow   v.   Wilson, 

ed.;    Wms.  Exrs.  789;    Prec.  Ch.   173.  L.  R.  4  C.  P.  745 ;   z.posl. 

And    see   as   to    expressions    "heirs,"  ^  Hob.  9,  lO;   Prec.  Ch.   173;  Wms. 

"  next  of  kin,"  etc.,  11   Vin.  Abr.   133,  Exrs.  789. 

pi.  27;   Wms.  Exrs.  787;   Carr  v.  Rob-  ■•  Supra,  §    211;    Lee  v.  Chase,  58 

erts,  5  B.  &  Ad.  78;  %^']-j,  %upra.  A  suit  Me.   432.     An   action    to    recover    an 

to  collect  personal  assets  is  to  be  dis-  annuity  survives.     Smith   v.  Smith,    15 

tinguished  from  one  to  sell  realty  which  Lea,  93.     Also    a   right    of   action    for 

descends.     15  Lea,  194.  being   removed    from    office  without   a 

hearing.    4  McArth.  141. 

354 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   279 

by  way  of  recompense,  the  earlier  doctrine  of  the  common 
law  has  been  that  the  action  dies  with  the  person  for  the 
want  of  litigants  ;  dies,  that  is  to  say,  whether  with  the  per- 
son who  committed  or  the  person  who  suffered  the  wrong.^ 
Hence,  the  executor  or  administrator  of  the  injured  party 
could  not  bring  an  action  in  former  times  for  false  imprison- 
ment, assault  or  battery,  or  other  physical  injury  suffered  by 
his  decedent.^  Nor  could  he  sue  for  torts  affecting  the  feel- 
ings or  reputation  of  his  decedent,  such  as  seduction,  libel, 
slander,  deceit,  or  malicious  prosecution. '^  So,  too,  all  right 
to  recover  for  injuries  done  to  the  freehold  —  nay,  perhaps,  to 
personal  estate  also  —  was  excluded  by  the  death  of  the 
owner.* 

Statutes,  however,  passed  in  the  reign  of  Edward  III., 
changed  considerably  a  rule  often  quite  disadvantageous 
to  estates  of  the  dead,  in  its  practical  operation,  by  open- 
ing a  wider  door  to  executors  and  administrators  who  sought 
to  recover  damages  for  wrongs  suffered  during  life  by  those 
whose  estates  they  represented.  Trespasses  committed  in 
carrying  away  personal  property  of  the  decedent  during  his 
lifetime,  whereby  the  assets  which  reached  the  executor's 
hands  became  necessarily  impaired  in  value,  first  attracted 
the  attention  of  the  English  Parliament ;  and  statute  4  Edw. 
III.  c.  7  placing  the  executor,  as  to  all  such  trespassers,  upon 

^  Wms.   Exrs.    790;    i    Saund.    2i6,  *  Wms.    Exrs.    793;     i    Saund.    216, 

217,  notes.  217,  notes. 

•^  lb.;     Smith    V.  Sherman,  4    Cush.  The  form,  rather  than  the  substance,  of 

408;     Marker  v.  Clark,    57    Cal.    245;  this  distinction  between  actions  founded 

Anderson  v.  Arnold,  79  Ky.  370.  in    contract  and  actions  founded  in    a 

^  Long  V.  Hitchcock,  3  Ohio,  274;  wrong,    appears   to   have   been  insisted 

Walters    v.    Nettleton,    5    Cush.    544;  upon  in  the  earlier  authorities.    Thus  it 

Nettleton    v.    Dinehart,    5    Cush.    543;  was  said,  that  in  cases  where  the  decla- 

Deming  v.  Taylor,    i    Day,  285 ;   Wms.  ration  imputes  a  tort  done  either  to  the 

Exrs.  793;    McClure  z'.  Miller,  3  Hawks,  person  or  property  of  another,  and  the 

133;    Miller  v.  Umberhower,  10  S.  &  R.  flea  must  be  "  not  guilty,"  the  rule  was 

31 ;    Sawyer  v.  Concord  R.,   58  N.   H.  actio  personalis  moritur  cum  persona. 

517.     Action  for  criminal  conversation  Hence,  the  doubt  formerly  entertained 

does  not  survive.    Clark  v.  McClellan,  9  whether    assumpsit  would    lie    for   or 

Penn.  St.  128.     Nor  an  action  for  ex-  against  an  executor;    because  the  action 

penses  incurred  by  the  testator  or  intes-  was   in  form  trespass  on   the   case,  and 

tate  in  defending  against  a  groundless  therefore    supposed    a   wrong.      Wms. 

suit.     Deming  z/.  Taylor,  i  Day,  285.  Exrs.  789;  Plowd.  180;   Cro.  Jac.  294; 

2  Ld.  Raym.  974. 

355 


§  280  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  same  footing  which  his  testator  would  have  occupied  had 
he  still  remained  alive,  the  next  step  was  to  accord  similar 
benefits  to  the  estates  of  such  as  might  die  intestate.^  By  an 
equitable  construction  of  these  statutes,  an  injury  done  to 
the  personal  estate  of  the  decedent  during  his  lifetime  be- 
came distinguished  from  that  suffered  by  his  person,  so  that 
in  effect  an  executor  or  administrator  might  have  the  same 
action  for  an  injury  done  to  the  personal  estate  of  the  de- 
ceased during  his  lifetime,  whereby  it  had  become  less  bene- 
ficial to  the  representative  than  it  should  have  been,  as  the 
deceased  himself  might  have  had  if  living,  whatever  the  form 
of  action. 2 

§  280.  The  same  Subject.  —  Where,  therefore,  the  personal 
representative  can  show  that  damage  has  accrued  to  the  per- 
sonal estate  of  the  deceased,  through  breach  of  the  defend- 
ant's express  or  implied  promise,  the  later  rule  is  that  he 
may  sue  at  common  law  to  recover  damages,  even  though 
the  action  itself  sound  in  tort.  As  where  the- attorney  is 
sued  for  his  negligence  in  investigating  a  title  upon  which  a 
transfer  of  property  depended.^  Or  where  one  contracting 
for  safe  carriage  receives  an  injury  which  results  in  a  loss  of 
his  baggage  ;  *  notwithstanding  an  action  for  the  graver  per- 
sonal injury  might  have  died  with  the  sufferer.  As  these 
statutes,  nevertheless,  made  no  change  in  the  earlier  law,  so 
far  as  the  survival  of  actions  for  injury  done  to  the  freehold 
was  excluded,  some  fine  distinctions  have  been  made  by  the 
courts  in  applying  this  later  rule  ;  distinctions  founded  in  the 
essential  differences  between  real  and  personal  property.^ 

'  1  Saund.  217;  Cro.  Eliz.  384;  stats,  sued  upon  or  its  proper  security.    2  Ld. 

4  Edw.  III.;    15  Edw.  III.,  c.  5;   Wms.  Raym.   973;   Paine  v.  Ulmer,  7  Mass. 

Exrs.  790.  317;   4  Mod.  403;    12  Mod.  72;   Wms. 

2  Trepass    or    trover    may,    accord-  Exrs.  791. 
ingly,   be  brought  by  the  executor  or         ^  Knights  v.  Quarks,  4  Moore,  532. 
administrator.    Cro.  Eliz.  377;  Manwell         *  Alton  v.  Midland  R.,  19  C.  B.  N.  S. 

V.    Briggs,    17  Vt.  176;    Potter  v.  Van  242. 

Vranken,  36  N.  Y.  619.      Debt  on  a         ^  See   preceding   section.     Thus,   by 

judgment  against  an  executor  suggest-  the  equity  of  statute  4  Edw.  III.,  c.  7, 

\wg  2,  devastavit,     i  Salk.  314.     Action  the  executor  or  administrator  of  a  lessee 

against  a  sheriff  for  the  default  of  him-  might  maintain  an  ejectment  suit  founded 

self  or  his  deputy  to  the  loss  of  the  right  on  transmission  by  death  of  a  title  to 


CHAP.  II.]  COLLECTION    OF   THE   ASSETS.  §  28O 

But  the  decisions  are  somewhat  confusing  on  this  point ; 
and  it  must  not  be  supposed  that  the  mere  form  of  action 
shall  conclude  the  question  of  survival  of  the  right  to  sue ; 
for  it  is  the  gist,  rather,  and  substance  of  the  action  that 
must  determine.  The  principle  of  the  common-law  dis- 
tinction is  still  that  the  executor  or  administrator  shall 
enforce  contract  rights  of  action  as  collector  or  custodian 
of  the  decedent's  personal  estate,  and  not  pursue  wrongs 
for  which  the  decedent  might  have  sought  a  personal 
redress  in  damages ;  ^  a  distinction  not  easily  maintained, 
however,  as  one  perceives  when  he  reflects  that  our  modern 
incorporeal  personal  property,  with  its  claims  and  demands 
of  various  kinds,  has  expanded  in  sense  far  beyond  the 
ancient  theory  of  a  simple  cJwse  hi  action  or  debt,  which 
needed  only  to  be  reduced  into  the  representative's  posses- 
sion or  collected.  Pursuing  that  distinction,  judicial  policy 
pronounces  finally  against  the  survival  of  an  action  for 
breach  of  promise  to  marry  to  the  plaintiff's  representative, 
unless,  perhaps,  as  rarely  happens,  the  foundation  of  damage 
alleged  is  the  loss  of  plaintiff's  personal  property  in  conse- 
quence ;  and,  indeed,  there  are  very  sound  reasons  why 
such  a  cause  of  action  should  not  be  permitted  to  survive 

chattels  real.     Wms.  Exrs.  793;   Doe  v.  don,  i  B.  &  P.  330.      So  where  grass  is 

Porter,  3  T.  R.  13.     But  actions  for  ob-  mowed  and  carried  off  as  hay,  trespass 

stvucting  rights,  diverting  a  watercourse,  is     maintainable.     Wms.     Exis.     794; 

and  the  hke,  did  not  survive  to  the  rep-  Wentw.  Off.  Ex.  167;  Halleck  v.  Mixer, 

resentative.      i    Saund.    217   a;    Wms.  16  Cal.  574.     Whether  injury  to  grow- 

Exrs.  793.    Nor  could  the  representative  ing   crops  might  be    sued    for,  on   the 

maintain  trespass  quare  clanswn  fregit  doctrine  of  a  constructive  severance  and 

nor  an  action  merely  for  cutting  down  emblements,   is    sometimes    considered, 

trees,  or  growing  corn,  etc.,  or  for  other  Wms.  Exrs.  793;    70  Me.  219. 

waste  committed  on  the  freehold  during  1  Chamberlain   v.   Williamson,  2  M. 

the   lifetime    of  the    decedent.      Wms.  &  S.  408;   Smith  v.  Sherman,  4  Cush. 

Exrs.  793;    Williams  v.  Breedon,   i    B.  408;    Kelley  v.  Riley,   106  ^L'lss.  341; 

&  P.   329;  Wentw.  Off.  Ex.   163,   14th  Hovey  v.  Page,  55  Me.  142;    Harrison 

ed.     And  yet  for  corn  and  wood  of  the  v.  Moseley,  31  Tex.  608.    But  cf.  Shuier 

decedent  cut   and  carried  away  during  v.  Millsaps,  71  N.  C.  2<)'j,  contra,  where 

his  life  it  would  appear  that  the  exec-  the    death  was  that    of  the   defendant 

utor  might  bring  his  action;   for  sever-  instead.      Upon  the  subject  of  breach  of 

ance    converts    property    from    real    to  promise  to  marry,  see,  generally,  Schoul. 

personal,   and   what  was    carried    away  II us.  &  Wife,  §§  40-51.     And  see  Fen- 

and   capable  of  being  carried   became  lay  v.  Chirney,  20  Q.  B.  D.  494;    §  370^ 

movable  and  assets.     Williams  v.  Bree-  post. 

3S7 


§  28 1  EXECUTORS    AND    ADMINISTRATORS.  [PAKT  IV. 

at  all.  And  so  with  respect  to  actions  against  physicians 
for  malpractice,^  or  against  an  attorney  through  whose 
unskilful  management  his  client  was  incarcerated.^  For 
though  the  form  of  action  may  be  contract,  the  damage, 
substantially,  laid  in  such  cases,  and  for  which  recovery  is 
sought,  is  in  reality  mental  or  physical  suffering  inflicted 
upon  the  person  of  the  decedent  through  the  defendant's 
negligence  or  misconduct.  And,  notwithstanding  the  gen- 
eral rule,  the  same  considerations  do  not  always  appear  to 
have  moved  the  court  where  the  plaintiff  sufferer  dies  first, 
as  where  one  survives  the  defendant  and  seeks  to  hold  the 
defendant's  estate  liable  for  his  own  redress.^  Yet  the  law 
as  to  survival  of  actions  is  usually  defined  as  the  same 
whether  plaintiff  or  defendant  dies,  and  reciprocal  in  its 
operation.* 

§  281.  The  same  Subject;  Replevin,  Detinue,  etc.,  by  the 
Representative.  —  If  goods  or  chattels  of  the  decedent,  taken 
away  during  his  lifetime,  continue  /;/  specie  in  the  hands  of 
the  wrong-doer  after  his  death,  replevin  and  detinue  will  lie 
for  the  representative  to  recover  back  the  specific  things." 
And  for  the  conversion  of  such  goods  or  chattels  an  action 
lies  by  the  executor  or  administrator  as  representative  of  the 
deceased  to  recover  their  value.^  In  general,  goods  or  chat- 
tels taken  away,  which  continue  as  such  in  the  hands  of  the 
wrong-doer,  can  be  recovered  by  the  representative ;  or,  if 
sold,  an  action  for  money  had  and  received  will  lie  to  recover 
their  value.^ 

1  Wms.  Exrs.  801 ;  Longz'.  Morrison,  *  As  to  suing  for  injury  to  the  corpse 
14  Ind.  595.                                                     of  decedent,  see  Griffith  v,  Charlotte  R., 

2  Wms.  Exrs.   801.     Cf.  Knights  v.     23  S.  C.  25. 

Quarles,  supra.     And  see  language  of  ^  Wms.  Exrs.  787;    I  Saund.  217  «./ 

Lord    Ellenborough  in  Chamberlain  v.  Jenney  v.  Jenney,  14  Mass.  232 ;    Reist 

Williamson,  supra.  v.  Heilbrenner,  il  S.  &  R.  1 31;    Elrod 

■^  Actions  of  deceit,  as  in  the  sale  or  v.  Alexander,  4  Heisk.  342. 
exchange  of  property,  do  not  at  com-  ^  Wms.  Exrs.  787;  Jenney  2/.  Jenney, 

mon  law  survive.     Cutting  w.  Tower,  14  supra;   Willard  v.  Hammond,   I    Post. 

Gray,    183;     Newsom    v.    Jackson,    29  382;    Eubanks  v.  Dobbs,  4  Ark.   173; 

Geo.  61 ;    Coker  v.  Crozier,  5  Ala.  369;  Manwell  v.  Briggs,  17  Vt.  17G;    Charlt. 

Henshavv  v.  Miller,   17   How.   (U.  S.)  (Ga.)  261. 

212;   Grim  v.  Carr,  51   Penn.  St.  533;  '  Potter  v.  Van  Vranken,  36  N.  Y. 

Wms.  Exrs.  793,  note  by  Perkins.  619. 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §  282 

§  282.  The  same  Subject ;  Modern  Statutes  affecting  the  Rule. 
—  Modern  local  statutes  are  frequently  explicit  as  to  the 
right  of  action  by  or  against  the  personal  representative, 
founded  in  a  tort  ;  and  the  right  of  action  is  thus  extended 
in  terms  more  or  less  specific.  The  obvious  tendency  of  our 
later  legislation  is  to  remov^e  the  old  barriers  which  ob- 
structed the  survival  of  actions,  so  as  to  give  an  aggrieved 
person's  estate  the  benefit  of  pecuniary  compensation.  Thus, 
in  Massachusetts,  it  is  now  provided  that  all  actions  which 
would  have  survived,  if  commenced  by  or  against  the  original 
party  in  his  lifetime,  may  be  commenced  and  prosecuted  by 
and  against  his  executors  and  administrators.^ 

Actions  of  replevin,  actions  for  goods  taken  and  carried 
away  or  converted  by  the  defendant  to  his  own  use,  and 
actions  against  sheriffs  for  malfeasance  or  nonfeasance  by 
themselves  or  their  deputies,  are  among  the  causes  specially 
enumerated  in  American  local  statutes ;  '^  causes,  some  of 
them,  fairly  privileged  in  this  respect,  irrespective  of  such 
legislation.  In  various  States,  actions  for  libel,  or  slander, 
are  now  found  thus  to  survive  ;  ^  also  actions  for  seduction  ;  * 
actions  for  deceit  ;  °  and  actions  for  malpractice  by  a  physi- 
cian, apothecary,  or  attorney.^ 

So,  too,  is  a  modern  legislative  disposition  strongly  mani- 
fested to  enlarge  and  confirm  the  representative's  remedies 
for  such  torts  as  may  have  been  committed  against  the 
person  of  the  decedent.  Thus,  a  Massachusetts  statute  pro- 
vides that  the  following  (among  other  causes  specified)  shall 
survive  in  addition  to  the  actions  which  survive  by  the  com- 
mon law  :  actions  of  tort  for  assault,  battery,  imprisonment, 
or  other  damage  to  the  person.'^     The  sweeping  language  of 

1  Mass.  Pub.  Stats,  c.  166,  §  i.     An  ^  Haight  v.  Iloyt,  19  N.  Y.  464. 
action  against  an  apothecary  for  negli-  ^  Long  v.   Morrison,    14    Ind.   595; 
gently    selling   a    deadly  poison    as    a  Miller  z/.  Wilson,  24  Penn.  St.  114. 
harmless     medicine    will    consequently  "  Mass.  Pub.  Stats,  c.  165,  §  i.     The 
survive.     Norton  v.  Sewall,    106  Mass.  words  "  damage  to  the  jiersun  "  in  this 
145.  statute  do  not  include  torts  not  directly 

2  Smith  V.  Sherman,  4  Cush.  408;  affecting  the  person,  but  only  the  feelings 
Norton  v.  Sewall,  106  Mass.  143.  or  reputation,  such  as  breach  of  promise, 

*  Nutting  V.  (Joodridge,  46  Me.  82.        slander,  or  malicious  prosecution.    Nor- 

*  Shafer  v.  Grimes,  23  Iowa,  550.  ton  v.  Sewall,  106  Mass.  143;  Nettle- 

359 


§  283  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

kindred  enactments  in  some  other  States  confers  a  survival 
of  actions  ex  delicto ,  still  rnore  comprehensive.^  And  under 
the  operation  of  appropriate  practice  acts,  the  executor  or 
administrator  of  any  person  who  might  have  sued  in  his  own 
name,  during  his  life,  for  personal  injuries  sustained  by 
reason  of  the  negligence  of  some  town  in  keeping  its  high- 
ways, or  through  the  culpable  carelessness  of  some  railway 
or  other  common  carrier,  may  sue  as  representative  where 
his  decedent  died,  having  a  cause  of  action.^ 

§  283.  The  Subject  continued ;  Action  for  Damages  in  causing 
Death.  —  A  remarkable  instance  in  which  the  rule  of  survival 
of  actions  has  been  enlarged,  relates  to  instantaneous  death. 
At  the  common  law  an  action  could  not  be  brought  by  one's 
executor  or  administrator  to  recover  damages  for  causing  the 
decedent's  death  ;  for  the  death  of  a  human  being  afforded 
no  ground  of  an  action  ex  delicto,  even  when  caused  by 
another's  wrongful  act  or  neglect.^  In  view,  chiefly,  per- 
haps, of  the  great  damages  to  which  travellers  in  great  num- 
bers have  become  exposed  in  these  modern  days  of  coach, 
railway,  and  steamboat  transportation,  the  peculiar  trust 
they  are  compelled  to  repose  in  those  who  undertake  to 
carry  them,  and  the    sound   policy  of  holding  transporting 

ton  V.  Dinehart,  5  Cush.  543;    Conly  v.  by  negligence,  the   plaintiff  dies    from 

Conly,  121  Mass.  550.  some  other  cause,  the   right  of  action 

1  Shafer  v.  Grimes,  23  Iowa,  550.  survives.  Chicago  R.  z^.  O'Connor,  119 
See  also  Adams  v.  WiUiams,  57  Miss.  111.  586.  A  right  of  action  in  the  fed- 
38.  Actions  for  malicious  arrest  and  eral  court  to  recover  a  penalty  given 
imprisonment  survive.  Huggins  v.  Tole,  by  a  federal  statute  does  not  survive. 
I  Bush.  192;  Whitcomb  v.  Cook,  38  Schreiber  v.  Sharpless,  I  ID  U.  S.  76. 
Vt.  477.  Nor  does  an  action  for   enticing  away 

2  Wms.  Exrs.  792,  note  by  Per-  one's  servant.  Huff  t'.  Watkins,  20  S.  C. 
kins;  Hooper  v.  Gorham,  45  Me.  209;  477.  Nor  for  malicious  prosecution.  41 
Demond  v.  Boston,  7  Gray,  544.     See  Ark.  295. 

as  to  survival  of  suit  for  penalty  under  ^  Wms.  Exrs.  797,  citing  preamble  of 
a  manufacturing  act,  where  the  plain-  stat.  9  &  10  Vict.  c.  93 ;  Carey  v.  Berk- 
tiff  dies  after  judgment,  Blake  v.  shire  R.,  i  Cush.  475;  Wyatt  v.  Wil- 
Griswold,  104  N.  Y.  613.  A  cause  of  liams,  43  N.  H.  102.  If  one  lives  from 
action  for  conspiracy  to  cheat  and  de-  three  to  five  minutes  after  being  injured 
fraud  or  for  deceit  survives.  Brackett  by  negligence,  the  cause  of  action  will 
V.  Griswold,  103  N.  Y.  425 ;  Baker  v.  survive.  Kellow  v.  Central  Iowa  R., 
Crandall,  78  Mo.  584.  Where  pending  68  Iowa,  470. 
one's  action  for  personal  injuries  caused 

360 


CHAP.  II.]  COLLECTION    OF    THE    ASSETS.  §  283 

companies  to  the  exercise  of  a  reasonable  care  and  diligence 
in  managing  their  perilous  business,  statutes,  both  English 
and  American,  have  been  enacted  during  the  present  cen- 
tury, providing  in  substance  that  damages  may  be  recovered, 
not  only  for  personal  injuries,  but  for  causing  one's  death 
wrongfully  and  carelessly.  Many  of  these  statutes  are  ex- 
plicitly directed  against  railway  and  other  passenger  carriers  ; 
but  inasmuch  as  modern  invention  tends  in  various  other 
instances  to  place  individuals  within  the  power  of  corpora- 
tions and  private  persons  who  undertake  to  perform  a  ser- 
vice, —  to  say  nothing  of  killing  by  assault  and  premeditated 
violence,  such  as  the  criminal  codes  of  all  ages  more 
especially  provide  for, — the  humane  and  prudent  legislation 
of  the  nineteenth  century  takes  often  in  England  and  the 
United  States  a  more  general  scope. 

Of  this  latter  character  is  the  English  statute  9  and  10 
Vict.  c.  93,  which  enacts  that  whensoever  the  death  of  a 
person  shall  be  caused  by  a  wrongful  act,  neglect  or  default, 
such  as  would,  if  death  had  not  ensued,  have  entitled  the 
party  injured  to  maintain  an  action  and  recover  damages, 
then,  and  in  every  such  case,  the  person  who  would  have 
been  liable  if  death  had  not  ensued,  shall  be  liable  to  an 
action  for  damages,  notwithstanding  the  death  of  the  person 
injured.^  Corresponding  enactments  are  to  be  found  in  most 
parts  of  the  United  States,  extending  to  corporations  as  well 
as  individuals,  causing  such  damage  or  death.^  Actions,  under 
statutes  of  this  character,  are  sometimes  to  be  brought  in 
the  name  of  the  State,  and  as  though  by  instituting  a  sort 
of  criminal  prosecution  against  a  corporation ;  and  even 
where  the  action  is  brought  as  a  mere  civil  action  in  the 
name  of  the  executor  or  administrator,  the  benefits  are  made 
to  redound,  as  far  as  possible,  to  a  surviving  spouse,  children, 
or  parent,  immediately,  rather  than  for  the  purpose  of  sup- 
plying assets  for  the  decedent's  general  estate.^ 

1  Stat.  9  &  10  Vict.  c.  93,  cited  Wins.  8  gtat.  9  &  10  Vict.  c.  93;  Wms. 
Exrs.  796.  Exrs.  797,  and  note  by  Perkins.     And 

2  Richardson  v.  N.  Y.  Central  R.,  98  cf.  in  general,  Sherm.  &  Redf.  on  Negli- 
Mass.  85;  Whitford  v.  Panama  R.,  23  gence;  Cooley  on  Torts;  Bigelow  on 
N.  ¥.465;  Glass  V.  Howell,  2  Lea,  50.  Torts,  etc.,  where  the  subject  is  more 

361 


§  284  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

The  broad  underlying  principle  of  all  such  legislation  is  to 
render  persons  liable  in  damages  for  inflicting  an  injury 
wantonly  or  negligently,  whether  the  innocent  sufferer  by 
such  tort  dies  before  recovering  recompense  or  not,  and 
whether  death  ensues  instantaneously  or  later. 

§  284.  The  same  Subject ;  Actions  founded  on  Wrongs  done 
to  Real  Estate,  etc.  —  Actions  founded  on  wrongs  done  to  the 
freehold  during  the  decedent's  life  did  not,  as  we  have  re- 
marked, survive  at  the  common  law.^  Hence,  the  personal 
representative  could  not  maintain  trespass,  q.  c.  /.,  nor  sue 
for  merely  cutting  down  trees  or  for  committing  waste  on 
the  decedent's  real  estate  during  his  lifetime.^  Nor  could 
he  sue  for  diverting  a  water-course,  obstructing  lights,  and 
the  like.^  But  this  left  injuries  to  a  decedent's  real  prop- 
erty, committed  during  his  lifetime,  wholly  unredressed. 
Hence,  the  English  statute  3  &  4  Wm.  IV.  c.  42,  §  2,  recit- 
ing this  palpable  injustice,  enacts  that  executors  and  admin- 
istrators may,  within  a  year  after  a  decedent's  death,  bring 
actions  for  any  injury  to  his  real  estate  committed  within 
six  months  before  his  death.^  And  legislation  in  various 
parts  of  the  United  States  upholds,  in  more  ample  terms, 
the  survival  of  actions  to  the  personal  representative,  for 
damage  done  to  real  as  well  as  personal  estate.^ 


properly  discussed  at  length.    The  prac-  ^  Supra,  §  279. 

titioiier  will   be  guided  by  the  statutes  2  WJHiams  z/.  Breedon,  I  B.  &P.  329; 

of  his  own  State,  and  local  decisions  in  supra,  §  279. 

construction  of  the  same.  ^  Wms.  Exrs.  793;  I  Saund.  217, 
The  right  of  a  representative  to  sue  note;  Kennerly  v.  Wilson,  i  Md.  102. 
under  modern  statutes,  such  as  we  have  A  representative  cannot  bring  an  action 
denoted  in  this  and  the  preceding  sec-  on  the  case  for  overflowing  the  lands  of 
tion,  does  not  necessarily  depend  upon  the  decedent  during  the  latter's  lifetime, 
the  question  whether  the  deceased  left  McLaughlin  v.  Dorsey,  i  Har.  &  M. 
a  wife  or  family,  but  upon  the  common-  224;  Chalk  v.  McAlily,  10  Rich.  92. 
law  right  of  the  injured  person  to  sue  if  *  Wms.  Exrs.  795,  796. 
he  were  living.  See  Quin  v.  Moore,  ^  Mass.  Pub.  Stats,  c.  165,  §  i ;  How- 
15  N.  Y.  432.  The  cause  of  action  cott  z'.  Warren,  7  Ired.  L.  20.  An  action 
where  death  was  caused  by  another's  of  tort  for  damages  caused  by  one's  mill- 
wrong,  abates  upon  the  death  of  the  dam  may  thus  survive.  Brown  v.  Dean, 
wrong-doer.  Hegerich  v.  Keddie,  99  123  Mass.  254.  But  not  an  action  at 
N.  Y.  258;  Boor  V.  Lowrey,  103  Ind.  law  for  fraudulent  representation  induc- 
468;  §  2,T^,post.  ing  one  to  part  with  real  estate.    Legate 

362 


CHAP.  11.]  COLLECTION    OF    THE    ASSETS,  §   285 

Such  damages  when  recovered  by  the  personal  representa- 
tive appear  to  belong  fitly  to  the  personal  estate  of  the 
decedent  ;  ^  the  right  of  action  and  money  compensation 
being,  in  essence,  personal  and  not  real  property. 

§  285.  Actions  upon  Covenants  Real,  etc.  ;  Whether  Repre- 
sentative may  sue.  —  But  the  right  of  action  on  behalf  of 
a  decedent's  real  estate  has  been  denied  to  the  persona) 
representative  in  various  instances,  on  the  principle  that, 
the  land  having  descended  to  the  heirs  or  vested  in  devi- 
sees, the  right  of  action  vests  more  appropriately  in  them. 
Where  a  covenant  is  purely  collateral  and  does  not  run 
with  the  land,  but  its  benefit,  if  unbroken,  would  pass  to 
the  representative  as  personal  estate,  it  would  appear  to 
follow  the  usual  rule  of  contracts  as  to  survivorship ; 
that  is  to  say,  the  right  of  action  for  its  breach  passes, 
upon  the  death  of  the  party,  to  his  executor  or  administra- 
tor, and  constitutes  personal  assets.^  And  hence,  it  is  held 
that  for  breach  of  a  covenant  not  to  fell  or  lop  off  certain 
trees  expressly  excepted  out  of  a  lease  of  lands,  the  lease 
having  been  granted  by  the  decedent  during  his  life,  and 
the  breach  occurring  before  his  death,  the  lessee  may  be 
sued  by  the  personal  representative.^  So,  too,  that  the 
executor  of  a  tenant  for  life  may  sue  for  the  breach  of  a 
covenant  to  repair,  incurred  by  his  lessee  during  the  testa- 
tor's lifetime.'*  For,  unless  the  case  be  such  that  the  heir 
or  devisee  alone  could  have  sued,  the  personal  representa- 
tive is  the  proper  person  to  bring  the  action,  if  a  suit  be 
maintainable  at  all. 

V.  Moulton,  115  Mass.  552.     See,  how-  grew,  could  not  sue  for  a  breach  of  cov- 

ever,    Cheney   v.   Gleason,    125    Mass.  enant,  whether  incurred  before  or  after 

166,  as  to  the  equity  rule.  the    death  of  the   covenantee.      Wins. 

1  So  provided  in  stat.  3  &  4  Wm.  IV.  Exrs.  807. 

C.42;    Wms.  Exrs.  796.  *  Ricketts  v.  Weaver,   12   M.  &  W. 

2  Supra,  §  279.  718.     And  it  is  not  needful  that  the  ex- 

3  Raymond  v.  Fitch,  2  Cr.  M.  &  R.  ecutor  in  such  a  suit  aver  damage  to 
588.  Unless  the  executor  had  the  his  testator's  personal  estate.  Leases 
power  to  sue,  observes  Williams,  all  or  chattels  real,  we  are  to  observe,  con- 
remedy  was  lost,  for  the  trees  being  thus  stitute  personal  property,  being  estates 
excepted  from  the  demise,  the  heir  or  less  than  a  freehold. 

devisee  of  the  land,  on  which  the  trees 


§  285  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

But  where  the  covenant  runs  with  the  freehold,  the  right 
to  sue  will  pass  to  the  heirs  of  the  covenantee  or  his  assigns, 
and  thus  in  many  instances  to  the  exclusion  of  the  executor 
or  administrator ;  as  where  breach  is  made  of  the  covenant 
of  warranty  contained  in  a  conveyance.^  And  it  is  observa- 
ble that  a  covenant  running  with  the  land  may  thus  go  to 
the  heir,  notwithstanding  the  covenant  does  not  mention  the 
heir,  but  specifies  inaccurately  the  covenantee  and  his  execu- 
tor or  administrator.^  According  to  the  earlier  authorities, 
if  a  covenant  running  with  the  land  was  broken  during  the 
lifetime  of  the  testator  or  intestate,  the  executor  or  adminis- 
trator might  sue  upon  it,  doubtless  on  the  theory  that  dam- 
ages for  such  breach  ought  to  be  regarded  as  part  of  the 
decedent's  personal  estate  devolving  upon  him.^  This  rule 
still  applies  where  the  ultimate  damage  was  sustained  in  the 
lifetime  of  the  ancestor ;  as  where,  for  instance,  he  is  actually 
evicted  from  the  land  through  the  failure  of  the  warranted 
title,  or  by  some  breach  of  a  covenant  for  quiet  enjoyment.'* 
But  the  later  English  decisions  so  far  qualify  the  older  rule 
on  this  point  as  to  hold  that  damage  not  ultimately  sustained 
during  the  decedent's  lifetime,  upon  a  covenant  which  runs 
with  the  land,  is  not  to  be  sued  upon  by  the  executor  or 
administrator ;  and  that  even  though  a  formal  breach  of  such 
a  covenant  may  have  occurred  before  the  ancestor  died,  yet 
if  the  ultimate  and  substantial  damage  was  not  until  after  the 
ancestor's  death,  the  real  representative,  and  not  the  personal 
representative,  becomes  the  proper  plaintiff.  ^ 


1  Touchst.  175;   Wms.  Exrs.  801.  *  Wms.  Exrs.  801 ;   Grist  v.  Hodges, 

^  Lougher  v.  Williams,  2  Lev.  92.  3  Dev.  L.  198. 

^  Lucy  V.  Levington,  2  Lev.  26;  Com.  ^  Wms.  Exrs.  803,  804;  Kingdom  v. 
Dig.  Covenant  P>,  i;  Wms.  Exrs.  801;  Nottle,  I  M.  &  S.  355;  King  v.  Jones, 
Clark  V.  Swift,  3  Met.  390;  4  Kent  5  Taunt.  418;  4  M.  &  S.  188.  Weighty 
Com.  472;  Burnham  z*.  Lasselle,  35  Ind.  authorities  in  the  United  States  are 
425.  An  action  for  damages  for  non-  against  the  decision  of  Kingdom  z/.  Not- 
performance  of  a  sealed  agreement  to  tie,  supra,  and  in  support  of  the  doc- 
convey  land  is  to  be  brought  by  the  trine  that  the  breach  of  a  covenant 
personal  representative  and  not  by  the  against  incumbrances  is  broken  imme- 
heir  of  the  covenantee.  Watson  v.  diately  by  any  subsisting  incumbrance; 
Blaine,  12  S.  &  R.  131.  As  to  unlaw-  and,  consequently,  that  the  grantor  or 
ful  entry  and  detainer,  see  21  W.  Va.  his  personal  representative  may  sue  upon 
440.  it.     4  Kent   Com.   472;    Hamilton    v. 

364 


CHAP.  II.]  COLLECTION    OF   THE    ASSETS.  §  28/ 

Where  a  reversion  is  for  years,  the  executor  or  administra- 
tor is  the  proper  party  to  sue  on  a  covenant  made  with  the 
lessor,  whether  it  run  with  the  land  or  not.^ 

§  286.  The  same  Subject ;  Breach  of  Covenant  in  Deed  or 
Lease.  —  Executors  and  administrators  may  sue,  therefore, 
upon  breaches  of  covenant  under  a  deed  relating  to  the 
realty  which  have  occurred  during  the  life  of  the  decedent, 
so  as  to  impair  his  personal  estate ;  ^  also  upon  covenants  in 
an  underlease  carved  out  of  a  leasehold  estate.^  Whether 
breaches  occur  in  a  lease  before  or  after  the  lessor's  death, 
the  term  of  the  lease  continuing,  the  right  of  action  is  in  the 
executor  or  administrator ;  and  this  applies  to  the  covenant 
for  payment  of  rent.* 

§  287«    Action  for  disturbing  Possession;  Pew,  Lease,  etc.  — 

A  pew  being  treated  in  some  States  as  personal  property, 
the  executor  or  administrator  exercises  the  usual  rights  as  to 
disposing  of  it  or  rendering  it  otherwise  profitable  to  the 
estate.  Before  distribution  of  the  estate  he  may  occupy  it 
himself  or  let  it  ;  and  if  strangers  interfere  with  its  use 
or  with  his  obtaining  rent  for  it  from  others  in  his  represen- 
tative character,  he  may  declare  for  an  injury  since  the  death 
of  his  testate  or  intestate.''  Even  where  the  law  prevails 
that  pew-holders  have  an  estate  in  the  nature  of  a  right  of 
occupancy  subject  to  the  superior  rights  of  the  society  own- 
ing the  fee  of  the  church,  the  same  doctrine  appears  tenable, 
the  heirs  acquiescing,  unless  it  is  shown  that  the  property 
has  been  distributed  to  the  heirs,  or  at  all  events  gone  into 
their  possession  and  control.^ 

Wilson,    4    Johns.    72;     Chapman    v.  §353,  as  to -a  representative's  power  to 

Holmes,  5  Halst.  20;    Mitchell  v.  War-  deal  with    leases.     An  action  of  eject- 

ner,  5  Conn.  497;    Garrteld  v.  Williams,  ment  abates  on  the  death  of  the  defend- 

2Vt.  327;    Wilde,  J.,  in  Clark  z/.  Swift,  ant.     Farrall   v.    Shea,    66    Wis.    561. 

3  Met.  390.  But  after  the  death   of  a  plaintiff,  the 

^  Wms.  Exrs.  808.     Executor  of  ten-  suit  may  be  revived  in  the  name  of  the 

ant  for  years  comes  expressly  within  the  personal  representative,  and  rents  and 

Stat.  32  Hen.  VHL  c.  34.     lb.  profits   recovered    by  way  of  damages. 

2  Knights  V.  Quarles,  4  Moore,  532;  Roberts  v.  Nelson,  86  Mo.  2i. 

Taylor  Landl.  &  Ten.  §  459.  ''  Perrin  v.   Granger,   33  Vt.    loi ;    l 

*  lb.  Schoul.  Pers.  Prop.  158. 

*  Taylor  Landl,  &  Ten.  §  459.    See  ^  lb. 

365 


§  289  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

So  miy  the  representative  as  such  maintain  qjcare  impedit 
for  a  disturbance  in  his  own  time,  or  ejectment  upon  an 
ouster  after  his  testator's  or  intestator's  death,^  where  the 
latter  had  a  lease  for  years  or  from  year  to  year. 

§  288.  In  General,  Personal  Representative  sues  for  Assets  of 
the  Estate.  —  In  general,  a  suit  in  law  or  equity  to  recover 
the  personal  assets  of  an  estate,  must  be  brought  by  the  per- 
sonal representative.^  An  order  from  the  probate  court  or 
ordinary  is  not  usually  needed  for  the  representative  to  bring 
his  suit,  unless  perhaps  it  be  against  the  heirs.^ 

§  289.  Suits,  whether  to  be  brought  by  Representative  in  his 
own  Name  or  as  Representative.  —  As  a  general  rule,  the  exec- 
utor or  administrator  cannot  sue  in  his  individual  name  for 
demands  due  in  his  decedent's  lifetime  to  the  estate  which 
he  represents,  but  must  sue  in  his  representative  character  ;* 
while  upon  demands  created  since  his  decedent's  death  the 
reverse  holds  true.^ 

But  to  this  doctrine  are  apparent  exceptions.  Thus,  an 
executor  or  administrator  may  sue  in  his  own  name,  without 
declaring  his  representative  character,  on  a  note  given  to 
him  for  the  purchase-money  of  goods  sold  by  him  belonging 
to  the  estate  of  the  decedent.^  Or  upon  any  negotiable  note 
or  other  instrument  which  he  holds,  whose  tenor  makes  it  pay- 
able  to    bearer ; "   for   possession    of   such  an  instrument  is 

1  Doe  V.  Porter,  3  T.  R.  13;  Cro.  Vt.  548;  Webster  v.  Tibbits,  19  Wis. 
Eliz.    207;    4   Co.    95    a;   Wins.    Exrs.     438. 

878.  3  Jordan   v.    Pollock,     14    Ga.    145; 

2  Pope  V.  Boyd,  22  Ark.  535;   Hellen     Reid  v.  Butt,  25  Ga.  28. 

V.  Wideman,  10  Ala.  846;  Johnson  v.  *  Tappan  v.   Tappan,    10  Fost.    50; 

Pierce,  12  Ark.  599;   Biunk  v.  Means,  Patchen  z/.  Wilson,  4  Hill  (N.  Y.)    57; 

II  B.  Mon.  214;  Snow  v.  Snow,  49  Me.  Rogers  v.  Gooch,  87  N.  C.  442. 

159;    Sears  v.  Carrier,  4  Allen,  339;  ^  Kline  v.  Gathart,  2  Penn.  491. 

Cheely  v.  Wells,  33  Mo.   106;    Howell  ^  Evans   v.    Gordon,    8   Port.    (Ala.) 

V.  Howell,   37  Mich.   124;   Woodin  v.  346;   Goodman  z'.  Walker,  30  Ala.  482; 

Bagley,  13  Wend.  453;   Clason  v.  Law-  Oglesby  v.  Gilmore,  5  Ga.  56;   Gunn  v. 

rence,  3  Edw.  48;   Pauley  v.  Paulev,  7  Hodge,  32  Miss.  319;   Catlin  v.  Under- 

Watts,    159;    Linsenbigler  v.   Gouiley,  hill,  4  McLean,  337. 

56  Pa.  St.  i66;i  Middleton  w.  Robinson,  'Lyon   v.    Marshall,    il    Barb.   241 ; 

I  Bay   (S.  C.)  58;    Davis  v.  Rhame,  i  Brooks  v.  Floyd,  2  McCord,  364;   Hol- 

McCord  Ch.  191 ;    Baxter   v.  Buck,  10  combe  v.  Beach,  112  Mass.  450. 

366 


CHAP.  II.]  COLLECTION    OF    THE   ASSETS.  §  29O 

sufficient  primA  facie  evidence  of  title  to  the  holder.  Or  on 
a  promissory  note  payable  to  himself  individually,  which  he 
has  taken  in  settlement  or  compromise  of  a  debt  or  demand 
due  the  estate.^  And  an  executor  or  administrator  may  in 
his  own  name  sue  to  recover  the  price  of  personal  property 
sold  by  him  at  public  or  private  sale.^  So  has  he  been 
allowed  to  bring  an  action  of  replevin  for  property  of  the 
deceased  in  his  own  name.^  It  may  often  be  more  con- 
venient for  the  representative  to  sue  individually  in  such 
instances,  and  he  is  not  debarred  from  so  doing. 

§  290.  The  same  Subject ;  General  Principle  as  to  suing  in 
Representative's  Individual  or  OfiBcial  Name.  —  The  common- 
law  distinction,  as  laid  down  in  some  well-considered  Amer- 
ican cases,  is  this  :  Where  the  right  of  action  accrued  to  the 
testator  or  intestate  in  his  lifetime,  or  to  the  executor  or 
administrator  after  the  death  of  the  testator  or  intestate, 
either  upon  a  contract  express  or  implied,  made  with  the 
testator  or  intestate,  or  for  an  injury  done  to  the  property  of 
the  testator  or  intestate  during  his  lifetime,  the  executor 
or  administrator  should  sue  in  his  representative  character. 
But  where  the  right  of  action  accrues  to  the  executor  or 
administrator  upon  a  contract  made  by  or  with  him  as  such, 
since  the  death  of  the  testator  or  intestate,  or  for  an  injury 
done  to,  or  a  conversion  of,  the  property  of  the  testator  or 
intestate  in  the  hands  or  possession  of  the  executor  or  admin- 
istrator after  the  death  of  the  testator  or  intestate,  the  action 
may  and  ought  to  be  brought  in  the  proper  name  of  the 
executor  or  administrator,  but  not  as  such.*  This  distinction 
does  not  absolutely  apply,  however,  to  suits  upon  negotiable 
instruments,  nor  is  it  uniformly  observed  in  the  practice  of 
our  States.  And  we  should  conclude  that  the  representa- 
tive's right  to  sue,  whether  officially  or  in  his  own  name,  is 
to  a  great  extent  optional  on  his  part,  or  else  determined  by 
the  tenor  of  the  instrument  sued  upon. 

1  McGehee  v.  .Slater,  50  Ala.  431.  see   Thornton    v.    Smiley,    I    111.    13; 

2  Laycock  v.  Oleson,  60  111.  30.  Patchen  v.  Wilson,  4  Hill,  57;   Carter 

*  Branch  f.  Branch,  6  Fla.  314.  v.    Estes,    11    Rich.    363;    Manwell   v. 

*  Stewart  v.  Richey,  2  Harr.  164;  Briggs,  17  Vt.  176  ;  Carlisle  v.  Biirley, 
Kline  v.  Gathart,  2  Fenn.  491.    And     3  Greenl.  250. 

367 


§  291  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

Where  the  executor  or  administrator  sues  on  a  contract 
made  with  his  testator  or  intestate,  he  must,  under  such  a 
rule,  sue  necessarily  in  his  representative  character,  although 
the  time  for  payment  or  performance  had  not  arrived  when 
the  testator  or  intestate  died.^ 

8  291.  This  Principle  applied  in  suing  for  Torts  affecting  the 
Property.  —  Where  goods  and  chattels  which  belonged  to  the 
decedent  at  the  time  of  his  death  are  afterwards  tortiously 
taken  or  wrongfully  converted,  the  personal  representative 
may  sue  in  his  own  name  without  calling  himself  executor  or 
administrator ;  for  the  property  vested  in  him  on  the  death 
of  his  testator  or  intestate,  and  hence  the  wrong  may  be  con- 
sidered as  done  to  himself.^  And  such  is  the  special  property 
of  the  executor  or  administrator  in  the  decedent's  goods  and 
chattels,  as  a  title  he  may  assert  or  not,  that  according  to  the 
better  opinion  the  personal  representative  has  the  option, 
when  he  sues  in  damages  for  the  tort  thus  committed,  either 
to  sue  in  his  own  representative  capacity  and  declare  as  ex- 
ecutor or  administrator,  or  to  bring  the  action  in  his  own 
name  and  in  his  individual  character.^  Not  only  may  trover 
or  trespass  be  maintained,  and  other  actions  of  tort  upon  this 
principle,  but  likewise  replevin.'* 

An  action  may  be  brought  by  the  personal  representative 
in  his  own  name,  accordingly,  notwithstanding  the  tort  was 
committed  after  the  death  of  the  testate  or  intestate,  and  be- 
fore letters  were  issued  or  a  probate  granted  ;  ^  and,  we  may 
add,  whether  the  representative  was  ever  actually  possessed  of 
the  goods  or  not.^ 

1  Bronson,  J.,  in  Patchen  v.  Wilson,  destroying  as  well  as  for  carrying  away 
4  Hill,  57.  the  goods  of  the  decedent.     Snider  v. 

2  Patchen  v.  Wilson,  4  Hill,  57,  58;     Croy,  2  Johns.  227. 

Carlisle  v.  Barley,  3  Greenl.  250 ;   Sims  '°  Wms.  Exrs.  876;   Bollard  v.  Spen- 

V.   Boynton,    23  Ala.  353;    Skelheimer  cer,  7  T.  R.  358;   Hollis   v.  Smith,  10 

V.   Chapman,     32   Ala.  676;     Gage    v.  East,  294;    Ham  z/.  Henderson,  50  Cal. 

Johnson,  20  Miss.  437.  369;    Wms.  Exrs.  630,  637,  877. 

3  Bollard  v.  Spencer,  7  T.  R.  358;  «  Hollis  v.  Smith,  10  East,  294;  Val- 
Hollis  V.  Smith,  10  East,  295;  Ham  v.  entine  v.  Jackson,  9  Wend.  302.  Bui- 
Henderson,  5oCal.  367.         '  ler,  J-,  in  Cockerill  v.  Kynaston,  4  T. 

*  Branch  v.  Branch,  6  Fla.  314.  R.  281,  is  overruled  on  this  point. 
There  may  be  trespass  for  wasting  and     Wms.  Exrs.  876. 

368 


CflAP.   II.]  COLLECTION    OF    THE    ASSETS.  §  292 

In  suing  thus,  in  an  action  of  trover,  the  executor  or  ad- 
ministrator may,  if  he  bring  the  action  in  his  own  represen- 
tative name,  either  allege  that  his  testator  or  intestate  was 
possessed  of  the  goods,  and  the  defendant,  after  his  death, 
converted  them,  or  that  he  himself  was  possessed  as  such  ex- 
ecutor or  administrator,  and  the  defendant  converted  thein.^ 

§  292.  Suits  on  Contracts  made  with  the  Representative.  — 
Upon  a  contract  expressed  or  implied,  made  with  the  execu- 
tor or  administrator  as  such,  after  the  death  of  his  testator 
or  intestate,  the  action  may  be  brought  by  the  representative 
in  his  own  name  ;  ^  though  the  opinion  best  sanctioned  by 
English  and  American  authorities  is,  that  he  may  elect  to 
sue  either  in  his  individual  or  his  representative  capacity.^ 
As  upon  a  contract  made  with  reference  to  the  sale  or  dis- 
position of  particular  assets,  or  to  recover  the  price  thereof.'* 
Or  for  money  lent  by  him  as  executor  or  administrator.^ 
And  in  various  cases  where  assumpsit  is  maintainable  for 
recovering  money  paid  by  the  representative  to  the  use  of 
the  defendant.^  It  is  observable  that  contracts  made  by  a 
representative  bind  him  individually ;  and  yet  that  of  such 
contracts,  some  may  be  within  the  clear  scope  of  one's 
official  authority  and  some  without  it  ;  and  hence,  perhaps, 
is  a  source  of  confusion  in  drawing  the  line.  Were  the 
contract  clearly  without  the  scope  of  his  representative 
capacity,  he  would  probably  be  compelled  to  sue  upon  it  as 
an  individual,  if  he  could  sue  at  all. 

On  all  causes  of  action,  therefore,  accruing  after  the  dece- 

^  Wms.  Exrs.  877.    The  personal  rep-  Oglesby  v.  Gilmore,  5  Ga.  56;  Laycock 

resentative,  either  as  such  or  in  his  own  v.  Oleson,  60  111.  30;   Gunn  v.   Ilodge, 

name,  may  sue  the  sheriff  for  the  escape  32  Miss.  319;   Goodman  ?'.  Walker,  30 

of  one  in  execution  on  a  judgment  re-  Ala.  482;  Catlinz^.  Underhill,  4  McLeap, 

covered   by  him    in    his   representative  337;    Patterson  v.  Patterson,   59  N.  Y. 

capacity.     Bonafous  v.  Walker,  2  T.  R.  574;    Haskell  v.   Bowen,  44  Vt.   579; 

126;   Crawford    v.    Whittal,    Dougl.    4,  Eagle  v.  Fox,  28  Barb.  473;    Peebles  v. 

note.  Overton,    2    Murph.    384;    Mosman  v. 

2  Stewart  v.  Richey,  2  Harr.  164,  and  Bender,  80  Mo.  579. 

other  cases,  $upra,  %  290.     Otherwise  ^  2,^,.  Si.  Aid.  365;   Gallant  v.  Boute- 

where  the  contract  was  made  with  the  flower,  3  Dougl.  34. 

testator  or  intestate  himself.     lb.  ^  3  B.  &  Aid.  365;   Cowell  v.  Watts, 

<*  Wms.  Exrs.  878,  and  Perkins's  note.  6  East,  405 ;   Ord  v.  Fenwick,   3   East, 

*  Evans   v.   Gordon,    8    Port.    346;  103;   Wms.  Exrs.  879. 


§  293  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

dent's  death  and  included  within  the  scope  of  his  official 
powers,  the  preferable  rule  is  that  an  executor  or  administra- 
tor may  sue,  either  in  his  own  individual  or  his  representative 
capacity,  at  his  option  ;  ^  and  it  is  well  established  by  the  later 
cases  that  this  option  may  be  exercised  by  the  personal 
representative  wherever  money  recovered  upon  the  contract 
made  with  him  will  be  assets  ;2  though  some  of  the  older 
cases  appear  to  have  insisted  strenuously  that  he  must  sue 
as  an  individual.^ 

§  293.  Suit  by  Representative  on  Promissory  Note  or  Other 
Negotiable  Instrument.  —  With  respect  to  negotiable  instru- 
ments, there  are  various  decisions,  pointing  to  the  conclusion 
that  if  a  bill  be  indorsed  to  A.  B.  as  executor,  he  may  declare 
accordingly  in  suing  the  acceptor  ;  ^  and  that  an  executor  or 
administrator  may  sue  as  such  on  a  promissory  note  given  to 
him  in  that  capacity  after  the  death  of  his  testate  or  intes- 
tate.^ Also,  that  upon  an  instrument  payable  to  the  deceased 
by  name  or  his  order,  and  coming  to  the  hands  of"  his  execu- 
tor or  administrator,  the  latter  may  sue  in  his  representative 
character.^ 

Upon  a  bill,  note,  or  other  negotiable  instrument,  which 
by  suitable  indorsement,  or  according  to  its  original  tenor, 
becomes  payable  to  the  bearer,  the  executor  or  administrator 
who  holds  it,  may,  undoubtedly,  like  any  "bearer,"  sue  in  his 
own  name.'^  And  he  may  sue  in  his  own  name  on  a  promis- 
sory note  payable  to  himself  individually,  which  he  takes 
upon  a  transaction  made  with  himself  in  the  course  of  set- 
tling the  estate,  and  in  general  on  a  note  given  him  in  the 

1  Movvry  v.  Adams,  14  Mass.  327;  *  King  v.  Thom,  i  T.  R.  487;  10 
Merritt  v.  Seaman,  6  Barb.  330;   Knox     Bing.  55. 

V.  Bigelow,   15   Wis.  415;    Lavvson  v.  ^  Partridge    v.   Court,  5   Price,  412; 

Lawson,  16  Gratt.  230.  s.  c,  7  Price,  591  ;  Wms.  Exrs.  880. 

2  Wms.  Exrs.  881,  and  cases  cited;  ^  Murray  v.  E.  I.  Co.,  5  B.  &  Aid.  204. 
Abbott  V.  Parfit,  L.  R.  6  Q.  B.  346;  And  see  Baxter  v.  Buck,  10  Vt.  548  ; 
Heath  v.  Chilton,  12  M.  &  W.  637;  Litchfield  w.  Flint,  104  N.  Y.  543. 
Cowell  V.  Watts,  6  East,  410;  Boling-  '  Holcombe  v.  Beach,  112  Mass.  450; 
broke  v.  Kerr,  L.  R.  i  Ex.  222;  Bogs  Lyon  ty.  Marshall,  11  Barb.  241;  Brooks 
V.  Bard,  3  Rawle,  102.  v.  Floyd,    2  McCord,  364;    Sanford  v. 

^  10  Mod.  315;  3  B.  &  P.  II;  Wms.  McCreedy,  28  Wis.  103;  Rittenhouse  v. 
Exrs.  881.  Anmerman,  64  Mo.  197. 

370 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §  294 

course  of  his  own  dealings  with  the  estate.^  If  payable  to 
him  individually  or  as  bearer,  his  suit  in  his  own  name  fol- 
lows the  familiar  rule  applied  to  negotiable  instruments. 
And  even  if  specifically  payable  to  A.  B.,  described  as  execu- 
tor or  administrator,  he  will  not  be  required  to  prove  his 
fiduciary  character,  for  the  words  descriptive  of  such  charac- 
ter in  the  instrument  may  here  be  regarded  as  immaterial.'^ 

Our  conclusion,  therefore,  is  that  where  the  personal  rep- 
resentative receives  a  negotiable  instrument  whose  avails 
when  collected  will  be  assets  belonging  to  the  estate,  he  may 
prosecute  not  only  in  his  own  right,  but  (though  it  be  given 
to  him  after  the  decedent's  death)  at  his  option  in  his  repre- 
sentative character  instead.^ 

§  294.  General  Conclusion  as  to  Suing  upon  Contracts  in  the 
Individual  or  Representative  Character.  —  The  principle  of  those 
older  cases  which  insisted  upon  one's  individual  suit,  appears 
to  have  been  that  the  executor  or  administrator,  by  the  con- 
tract made  with  himself,  changed  the  nature  of  the  debt  orig- 
inally due  to  his  testate  or  intestate  ;  and  it  was  thought  that 
if  this  were  done  the  representative  ought  to  sue  for  the  new 
debt  in  his  own  name,  and  not  in  his  representative  charac- 
ter.^ It  would  seem  still,  according  to  English  authority, 
that  if  the  executor  or  administrator  plainly  changes  the 
nature  of  the  debt,  as  by  taking  a  bond  from  a  simple  con- 
tract debtor,  though  the  bond  be  given  to  him  as  executor 
or  administrator,  the  creation  of  a  new  personal  obligation  of 
a  higher  nature  precludes  his  suit  in  the  representative  ca- 
pacity upon  such  an  instrument.^  But  we  may  question  the 
reasonableness  of  the  exception,  and  prefer  to  extend  the 
modern  doctrine  of  a  representative's  option  to  such  a  case ; 

^  Laycock  v.  Oleson,  60  111.  30;  for  application  of  this  principle  to  ad- 
Evans  V.  Gordon,  8  Port.  346,  and  other  ministration  de  bonis  non  ;  Barron  v. 
cases  cited  supra,  §  292.  Vandvert,  13  Ala.  232;    Catherwood  v. 

2  Laycock  v.  Oleson,  60  111.  30.  Chabaud,  I  B.  &  C.  150. 

8  An  administrator  in  his  representa-  *  Wms.    Exrs.    881;     10   Mod.    315; 

tive  capacity  may  sue   as  bearer  on  a  Helm  v.  Van  Vleet,  i  Blackf.  342. 

note  payable  to  the  intestate  or  bearer,  ^  Wms.  Exrs.  882;    Price  v.  Moulton, 

although   such  note  was  not  delivered  10   C.    B.    561 ;    Partridge   v.    Court,  5 

until    after    the  death  of  the  intestate.  Price,  419. 
Baxter  v.  Buck,  10  Vt.  548.    See  §  408, 


§  295  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

for  courts  should  lean  against  a  judicial  construction  which 
tends  to  deprive  a  plaintiff  of  just  remedies,  by  leaving  him 
in  a  perilous  dilemma  as  to  the  forms  he  should  pursue. 

§  295.  Prosecution  of  Suits  in  Equity  by  the  Personal  Repre- 
sentative.—  The  executor  or  administrator  of  a  deceased 
party  may,  in  respect  of  the  transmission  of  the  interest  to 
him,  be  admitted  as  his  representative  in  a  suit  in  equity. 
Formerly  a  bill  of  revivor  was  necessary ;  but  modern  chan- 
cery practice,  aided  by  the  legislation  of  later  times,  favors  a 
continuance  of  the  suit  by  a  mere  order  to  revive,  the  repre- 
sentative appearing  or  being  summoned  to  prosecute  or 
defend.^ 

All  equitable  interests  of  the  deceased,  in  the  nature  of 
assets,  are  justly  enforceable  in  a  court  of  equity  by  the 
executor  or  administrator  suing  in  his  representative  capac- 
ity. Thus,  a  bill  in  equity  will  lie  by  an  executor  or  admin- 
istrator against  the  general  agent  of  his  testate  or  intestate 
for  a  discovery  and  an  account  of  the  latter's  transactions 
with  his  principal ;  ^  or  for  discovery  of  the  personal  estate  of 
the  deceased;^  though,  in  this  respect,  local  statutes  in  the 
United  States  prefer  an  inexpensive  summary  proceeding  in 
the  probate  court  against  persons  suspected  of  concealing  or 
embezzling  the  property ;  *  or  to  compel  a  legatee  to  refund 
a  legacy  on  good  reason,  such  as  a  deficiency  of  assets  ;  ^  or, 
similarly,  for  reimbursement  of  sums  paid  to  creditors  beyond 
personal  assets  ;  ^  or  to  restrain  a  receiver  of  letters  from 
the  decedent  from  publishing  them ;  *"  or  to  procure  title  to 


*  Wms.  Exrs.  890;  Daniell  Pract.  ^  Williams  z/.  Williams,  2  Dev.  Ch.  69. 
785;  15  &  16  Vict.  c.  86,  §  52;  Cheney  "  Thompson  v.  Stanhope,  Ambl.  737; 
V.  Gleason,  125  Mass.  166;  Mass.  Pub.  Queensbury  v.  Shebbeare,  2  Eden,  329. 
.Stats,  c.  165,  §  19;  Egremont  z/.  Thomp-  And  see  2  Story  Eq.  Jur.  §  946  et  seq.; 
son,  L.  R.  4  Ch.  448.  See  the  statutes  Wms.  Exrs.  1901.  As  to  prosecuting  a 
of  the  respective  States  for  the  modern  bill  in  equity  to  recover  land  or  its  spe- 
chancery  practice  in  relation  to  reviving  cific  avails,  still  held  by  a  party  to  a 
suits  in  equity.  fraud  upon  the  decedent,  see  Cheney  v. 

=2  Simmons  z/.  Simmons,  33  Gratt.  451.  Gleason,    125    Mass.     166.      No    relief 

^  I  Vern.  106.  afforded  in  equity  on  the  ground  of  mis- 

*  Supra,  §  270.  take,  where  the  representative  was  cul- 
^  Doe  V.  Guy,  3  East,  123.  pable.     Stewart  v.  Stewart,  31  Ala.  207, 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §  297 

specific  assets  which  stand  through  some  fraud  or  mistake  in 
another's  name,  so  that  he  cannot  assert  his  rights  at  law.' 

§  296.  Proceedings  to  obtain  Possession  of  Specific  Negotiable 
Instruments,  etc.,  belonging  to  the  Estate.  —  Where  notes  or 
Other  negotiable  instruments  against  various  parties,  which 
belonged  to  the  decedent,  and  were  formerly  held  by  him, 
have  come  into  the  hands  of  a  third  party  under  an  indorse- 
ment and  delivery  fraudulently  obtained,  the  representative 
has  the  right  to  sue  for  their  value  at  law,  as  for  a  tort.  But 
he  may,  instead,  proceed  to  obtain  the  specific  instruments  ; 
and  where  replevin  does  not  furnish  an  adequate  remedy, 
he  may  bring  a  bill  in  equity  to  compel  the  delivery  of  the 
specific  instruments  to  himself,  and  to  restrain  the  holder 
from  prosecuting  suits  at  law  upon  such  instruments,  or  part- 
ing with  their  possession  ;  joining  as  parties  to  the  bill  those 
indebted  upon  the  instruments.  He  should  elect,  however, 
whether  to  proceed  thus  for  the  specific  chattels  incorporeal, 
or  to  sue  for  their  value.^ 

§  297.  Pursuit  of  Assets  where  Decedent  fraudulently  trans- 
ferred.—  The  representative's  duty  in  pursuing  assets  ex- 
tends to  all  assets  of  the  decedent  which  are  applicable  to 
the  payment  of  debts.^  Not  only  may  he  in  some  instances 
set  up  fraud  to  defeat  the  decedent's  own  act,  but  he  may 
institute  proceedings  for  setting  aside  a  fraudulent  transfer 
made  by  the  decedent  ;  and  if  he  neglects  doing  so,  to  the 
injury  of  creditors  and  others  concerned  in  such  assets, 
he  renders  himself  liable  as  for  other  malfeasance  or  non- 
feasance in  the  performance  of  his  trust,  and  under  like 
limitations.* 

'  Burrus  v.  Roulhac,  2  Bush,  39.  proceedings   specially  to  recover  prop- 

^  Sears  v.  Currier,  4  Allen,  339.    And  erty    fraudulently    transferred    by    the 

see  Morton  v.  Preston,  18  Mich.  60.  decedent.     Me  cannot,  it  is  said,  avoid 

'  Welsh  V.  Welsh,  105  Mass.  229.  a  contract  made  by  the  decedent  on  the 

*  Sitpra,  §   220 ;    Wms.   Exrs.    1679,  ground  that   it   was  made   in  fraud    of 

and  note  by  Perkins;   Cross  v.  Brown,  creditors.     See    Pringle  v.  McPherson. 

51  N.  H.  488;    Lee  v.  Chase,  58  Me.  2    Desau.    524.     But    cf.    cases    cited 

436;    Danzey  z*.  Smith,  4  Tex.  411.   But  above. 

the  representative  should  usually  bring 

373 


§  299  EXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 

The  executor  or  administrator  may  consequently  maintain 
an  action  at  law,  or  suit  in  equity,  for  the  purpose  of  setting 
aside  a  transfer  or  conveyance  of  personal  property  made  by 
his  decedent  for  the  purpose  of  defrauding  his  creditors,  not- 
withstanding the  decedent  himself  would  have  been  barred.^ 
For  a  personal  representative  is  not  estopped  by  the  acts  and 
conduct  of  his  testator  or  intestate  under  all  circumstances  ; 
but  is  bound  to  settle  the  estate  as  justice  and  the  interests 
of  all  concerned,  in  their  turn,  may  demand. 

§  298.    Representative's  Power   to   Compromise   or   Arbitrate. 

—  As  incidental  to  the  power  to  sue  and  collect,  the  executor 
or  administrator  ought  to  have  a  right  to  arbitrate  or  com- 
promise any  demand  of  the  decedent  which  he  represents, 
provided  he  act  within  the  range  of  a  reasonable  discretion 
as  to  the  true  interests  of  the  estate.^  Nevertheless,  as  will 
hereafter  appear,  the  responsibility  is  a  perilous  one,  accord- 
ing to  numerous  authorities,  unless  reduced  by  express 
statute.^ 

§  299.  Effect  of  Contract  or  Covenant  to  the  Decedent,  -which 
did  not  name  his  Executors,  Administrators,  etc. — A  contract 
or  covenant  which  confers  a  valuable  right  or  cause  of  action, 
is  well  expressed  to  be  for  the  benefit  of  "  A.,  his  executors 
or  administrators,"  or  with  some  similar  expression,  for  its 
intent  then  is  plainly  not  limited  to  a  recovery  by  A.  in  per- 
son. But,  on  the  other  hand,  a  limitation  of  the  benefit  to 
A.  in  person,  and  that  its  enjoyment  shall  depend  upon  the 
precarious  tenure  of  his  life,  is  not  to  be  presumed ;  though 
every  contract  or  covenant  should  be  interpreted  according 
to  its  plain  or  natural  sense  as  being  founded  in  personal 
considerations  or  the  reverse.  Hence,  where  a  cause  of 
action  accrued  in  the  lifetime  of  the  decedent  on  a  contract 

1  Martin  z/.  Root,  17  Mass.  222;  Gib-  pendently  of  statute,  and  an  award 
bens  V.  Peeler,  8  Pick.  254;  Judson  v.  need  not  follow  the  statute  mode- 
Connolly,  4  La.  Ann.  169;  Morris  v.  Wamsley  v.  Wamsley,  26  W.  Va.  45. 
Morris,  5  Mich.  171;  Brown  v.  Finley,  ^  See  Wms.  Exrs.  1799-1801;  c.  5, 
18  Mo.  375;  McKnight  v.  Morgan,  2  post,  as  to  the  liability  of  an  executor 
Barb.  171;  §220.  or  administrator.     30  Kan.  118. 

2  The  right  to  arbitrate  exists  inde- 

374 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   3OO 

or  covenant  made  to  him  without  naming  "executors  or 
administrators,"  such  cause  of  action,  generally  speaking, 
will  pass  to  the  personal  representative  for  the  benefit  of  the 
estate.^  And  even  though,  because  of  the  terms  of  such 
contract  or  covenant,  as,  for  instance,  in  requiring  perform- 
ance at  a  future  date,  the  cause  of  action  did  not  actually 
accrue,  or  become  enforceable  until  after  the  decedent  died, 
the  executor  or  administrator  is  not  precluded  from  enforc- 
ing it  at  the  proper  time.^ 

§  300.  The  same  Subject ;  Effect  where  the  Expression  "  As- 
signs," "  Next  of  Kin,"  "  Heirs,"  etc.  is  used.  —  The  effect  is 
the  same  usually  where  the  expression  "A.  or  his  assigns" 
is  used  exclusively  or  in  connection  with  a  reference  to  execu- 
tors or  administrators.  For  where  the  scope  of  such  a  con- 
tract favors  such  intendment,  as  it  usually  does,  the  executor 
or  administrator  is  assignee  in  law  and  entitled.  Hence,  if 
money  be  payable  to  "  A.  or  his  assigns,"  the  executor  or 
administrator  may  generally  recover  upon  the  promise.^  So, 
too,  where  the  agreement  was  to  pay  money  or  deliver  goods 
to  "  A.  or  his  assigns  "  by  a  certain  day  ;  or  to  grant  a  lease 
to  "A.  and  his  assigns"  before  Christmas.  And  this,  not- 
withstanding the  intervening  death  of  A.  ;  inasmuch  as  his 
legal  assignee  is  not  by  such  circumstance  precluded  from 
enforcing  the  right,  unless  it  was  plainly  personal  to  A.  and 
conditioned  upon  his  life.* 

But  it  is  different  where,  on  the  other  hand,  by  "assigns" 
was  evidently  meant  an  assignee  in  fact.^  And,  generally, 
where  A.  has,  in  exercise  of  his  right  of  dominion,  assigned 
and  transferred  the  cause  of  action  during  his  life  to  some 

1  Wms.  Exrs.  789,  884;  supra,  <  Plowd.  288;  Wms.  Exrs.  884,  885; 
§  277.  Went.  Off.  Ex.  14th  ed.  215. 

2  Wms.  Exrs.  884;  §  Tp\,  post,  as  to  ^  As  where  the  condition  of  a  bond 
rights  accruing  after  decedent's  death;  was  to  pay  a  certain  sum  to  such  a  per- 
Plowd.  286;  2  P.  Wms.  467.  Thus,  son  as  the  obligee  should  by  his  last  will 
where  money  is  expressly  "  payable  to  in  writing  appoint  it  to  be  paid ;  and 
B.,"  his  executor  or  administrator  may  the  obligee  died  making  no  such  ap- 
sue  for  it.     lb.  pointment   by  his   will.     For  here    the 

8  Wms.  Exrs.  789 ;  Went.  Off.  Ex.  intent  evidently  was  to  pay  to  an  ap- 
215;    Hob.  9;    I  Leon.  316.  pointee,  not  to  an  executor.     Hob.  9; 

Wms.  Exrs.  886. 

375 


§  30I  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

third  person,  the  title  has  been  so  diverted  as  not  to  be  trans- 
missible legally  to  his  executor  or  administrator. 

So  truly,  indeed,  is  one's  executor  or  administrator  his  most 
appropriate  representative  or  assignee  in  law  upon  his  death, 
in  obligations  not  actually  assigned  by  the  decedent,  nor 
plainly  intended  to  cease  or  devolve  in  title  differently, 
that  the  word  "heirs"  or  "next  of  kin,"  introduced  into 
the  language  of  an  agreement,  will  not  confer  upon  such 
parties  the  right  to  pervert  assets  to  their  own  use,  nor  to 
supersede  or  participate  in  the  lawful  functions  of  the  per- 
sonal representative  whom  the  law  clothes  with  authority  to 
settle  and  wind  up  the  estate.^ 

§  301.  Right  of  Representative  to  distrain  or  sue  for  Rent  in 
Arrears.  —  Where  a  lessee  for  years  underlets  the  land  and 
dies,  his  personal  representative  may  distrain  at  common 
law  for  the  arrears  of  rent  which  became  due  in  the  lifetime 
of  the  deceased ;  because  these  arrears  were  never  severed 
from  the  reversion,  but  the  executor  or  administrator  has  the 
reversion  and  the  rent  annexed  thereto,  in  the  same  plight  as 
the  deceased  himself  had  it.^  And  statute  32  Hen.  VIII.  c. 
37,  extended  this  remedy  to  the  executors  and  administrators 
of  persons  seized  of  various  other  interests  in  land  short  of 
an  inheritance,  such  as  an  interest  for  one's  own  life  or  for 
another's  life  ;  ^  and,  moreover,  to  the  executors  and  adminis- 
trators of  tenants  in  fee.*  Hence  the  personal  representa- 
tive became  permitted  generally  to  distrain  for  arrears  of  rent 
due  the  decedent  in  his  lifetime.^ 

But  distress  for  rent  is  a  remedy  now  abolished  in  various 
parts  of  the  United  States.  And  doubtless,  for  arrears  of 
rent,  which,  consistently  with  the  doctrine  of  apportionment, 


1  II  Vin.  Abr.  133,  pi.  27;  Wms.  tends  the  right  to  distrain  to  a  demise 
Exrs.  787;  Carr  v.  Roberts,  5  B.  &  Ad.  for  any  term  or  at  will.  Wms.  Exrs. 
78;   supra,  §  277.  931.     And  see  Stat.  4  Geo.  II.  c.  28; 

2  I    Roll.    Abr.    672;     Latch.    211;  Taylor  Lan^ll.  &  Ten.  §  560. 

Wms.  Exrs.  927.  *  As   to    apportionment  of  rent,  see 

8  Co.   Lit.   162  a;   Wms.   Exrs.  928-  supra,  §  216.     And  see  Wright  v.  Wil- 

931 ;    I  Ld.  Raym.  172;    i  Freem.  392.  Hams,  5  Cow.  501. 
*  lb.    Stat.  3  &  4  Wm.  IV.  c.  42,  ex- 


CHAP.  II.]  COLLECTION    OF    THE    ASSETS.  §  304 

belongs  to  the  estate  of  a  decedent,  as  assets,  his  personal 
representative  may  sue,  as  a  living  landlord  might  have  done.' 

§  302.  Rights  of  Personal  Representative  upon  Conditions 
made  with  the  Deceased.  —  In  general,  a  condition  stipulated 
with  the  deceased  may  enure  to  the  benefit  of  the  estate 
through  the  personal  representative.  Thus,  to  quote  the  old 
books,  where  cattle,  plate,  or  other  chattels  were  granted  by 
the  testator  upon  condition  that  if  A.  did  not  pay  such  a  sum 
of  money,  or  do  some  other  act  as  the  testator  appointed,  etc., 
and  this  condition  is  not  performed  after  the  testator's  death, 
now  is  the  chattel  come  back  to  the  executor,  and  he  may 
maintain  an  action  respecting  it.^ 

§  303.  Right  accruing  to  Personal  Representative  by  Chattel 
Remainder,  etc.  —  A  right  to  sue,  which  never  existed  in  the 
testator  or  intestate,  may  likewise  accrue  to  the  executor  or 
administrator  by  chattel  remainder.  As  where  (to  cite  the 
old  books  again)  a  lease  is  made  to  B.  for  life,  the  remainder 
to  his  executors  for  years  ;  or  where  a  lease  for  years  is  be- 
queathed by  will  to  A.  Although  B.  never  had  the  term  in 
it,  nor  the  right  to  sue  while  he  lived,  yet  the  term  shall 
devolve  on  his  executors  who  may  maintain  an  action  in 
respect  of  it.^ 

§  304.  Right  accruing  to  Personal  Representative  in  his  Time 
and  after  the  Decedent's  Death. —  Besides  the  instances  just 
noticed,  of  rights  accruing  by  condition,  remainder,  etc.,  to 
the  executor  or  administrator,  there  are  others  analogous 
where  the  deceased  himself  could  not  have  sued,  because  of 
the  peculiar  tenor  of  the  contract  or  covenant  in  question 
and  the  date  of  his  death,  and  yet  the  right  of  action  would 
accrue  to  the  representative  in  his  time.  That  the  right  of 
action  did  not  accrue  to  the  testator  or  intestate  himself,  is 
not  fatal  to  the  right   of   his  representative ;   but  the  right 

'  As   to    ejectment,   see    power   over  ^  Went.     Off.     Ex.     14th     ed.     181, 

real  estate, /(?j/.  189;    Co.  Lit.  54  b;    Wms.   Exrs.  697, 

2  Went.  Off.  Ex.  14th  ed.  181 ;    Wms.  885. 
Exrs.  886. 

377 


§  305  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

itself  being  valuable,  the  representative  may  avail  himself  of 
it  at  the  proper  time. 

Thus,  as  the  old  books  state,  if  A.  covenants  with  B.  to 
make  him  a  lease  of  certain  land  by  such  a  day,  and  B.  dies 
before  the  day,  and  before  any  lease  made,  if  A.  refuse  to 
grant  the  lease,  when  the  day  arrives,  to  the  executor  of  B., 
the  executor  shall  have  an  action  as  such  on  the  covenant. 
And  where  the  father,  in  an  early  case  cited  by  the  English 
court  of  chancery,  possessed  of  a  term  for  years  and  renew- 
able every  seven  years,  assigned  this  lease  in  trust  for  him- 
self for  life,  remainder  in  trust  for  the  son,  his  executors, 
administrators,  and  assigns;  and  the  father  covenanted  to 
renew  the  lease  every  seven  years  as  long  as  he  should  live ; 
and  the  son  died  and  the  seven  years  passed,  upon  which  the 
executors  of  the  son  brought  a  bill  to  compel  the  father  to 
renew  the  lease  at  his  own  expense  ;  the  decree  was  made 
accordingly.^  So  upon  a  covenant  to  grant  a  lease  to  A. 
before  Christmas ;  or  upon  a  contract  to  deliver  a  horse  to 
A.  on  a  given  day  ;  ^  or  upon  an  agreement  to  stand  to  the 
award  of  certain  persons,  whose  award  was  to  pay  unto  A. 
by  a  certain  day  ;  notwithstanding  A.  dies  before  the  time 
appointed,  the  promise  confers  a  valuable  right  upon  which 
A.'s  executor  or  administrator  may  recover  as  assets  for  the 
benefit  of  the  estate  and  compel  performance. 

§  305.  Rights  of  Personal  Representative  as  to  Pledge,  Col- 
lateral Security,  etc.  —  It  was  formerly  said  that  where  no 
time  was  limited  for  the  redemption  of  a  pledge,  the  pledgor 
had  his  whole  lifetime  to  redeem  unless  quickened  by  a 
notice  in  pais,  or  through  the  intervention  of  a  court  of 
equity.^  But  our  modern  rule  of  limitations  regards  a  bar- 
rier of  years  rather  than  the  uncertain  duration  of  one  human 
life ;   and  hence  lapse  of  time,  irrespective  of  life  or  death, 

1  Husband  v.  Pollard,  cited  2  P.  Wms.  such  contract  or  covenant.  See  supra, 
467.  §  299.     As  to  the    effect   of  the  word 

2  I  Leon.  316;    Plowd.  288;   Wentw.     "assigns,"  see  supra,  §  300. 

Off.  Ex.  215;  Wms.  Exrs.  884,  885.  ^2  Kent  Com.  582;  Story  Bailm. 
There  is  no  necessity  for  naming  "A.  §§  345-348,  362;  i  Bulst.  29;  Bac. 
his  executors  or  administrators,"  etc.,  in     Abr.  Bailment,  B. 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   306 

affords  the  true  test  ;  subject  to  which  restriction,  the  rii;ht 
to  redeem  will  pass  to  the  personal  representative  of  the 
deceased  pledgor.^  The  death  of  the  pledgee  does  not  impair 
the  pledgor's  right  to  redeem,  for  tender  may  be  made  to  the 
executor  or  administrator  of  a  deceased  pledgee.^ 

If  a  time  be  limited  for  payment  of  a  debt  and  the  redemp- 
tion of  the  pledge  or  collateral  security  given,  and  the 
pledgor  die  before  the  appointed  time,  his  executor  or  ad- 
ministrator may  redeem  in  his  stead  at  the  day  and  place 
agreed  upon.^ 

A  pledge  of  property  belonging  to  the  estate,  though  it 
were  to  secure  the  person  who  provided  the  funeral,  cannot 
avail  against  the  decedent's  personal  representative  when 
made  by  intermeddlers  in  the  assets  and  without  authority 
from  him  ;  but  should  the  representative  have  sanctioned  or 
participated  in  the  pledge,  he  cannot  so  repudiate  the  trans- 
action afterwards  as  to  be  absolved  of  liability.*  The  per- 
sonal representative's  pledge  of  assets  for  his  private  debt  is, 
of  course,  a  misappropriation,  and  such  assets  may  in  general 
be  recovered  without  repaying  the  loan.^  An  executor's  or 
administrator's  duty  to  redeem  a  pledge  follows  the  rule  of 
prudence  ;  for  if  the  estate  he  represents  is  to  be  worse  by 
such  redemption,  the  preferable  course  seems  to  be,  to  let 
the  secured  creditor  avail  himself  of  the  pledge  and  stand  on 
the  usual  footing  of  creditors  for  his  balance.^ 

§  306.  Collection  of  Debts  with  Security  ;  changing  or  renew- 
ing the  Security.  —  Debts   with    mortgage  or  other  security 

^  Schoul.    Bailm.    224;   Cortelyou  v.         *  Jones   v.    Logan,  50   Ala.    493.     If 

Lansing,  2  Cain.  200;    Perry  v.  Craig,  3  not  at  the  time  qualitied  for  the  ofTice, 

Mo.  516;  Jones  t/. Thurmond,  5  Tex.  318.  he   is   nevertheless    estopped,  it   would 

2  Schoul.    Bailm.    224;    Story  Bailm.  appear,  by  his  own  wrong,  though  not 

§§  345~348-  to  the  injury  of  the  estate;    h\x\.  proof  of 

'  Bac.    Abr.     Bailment,    B;     Wentw.  his  presence  and  passive  assent  does  not, 

Off.    Ex.    181 ;     Wms.    Exrs.    886.      In  it  is  held,  sufficiently  charge  him.     lb. 
equity  the   value    of   the    property,  be-         ^  state  v.    Berning,  74  Mo.  87.     As 

yond  the  money  paid  for  it,  shall  belong  to  the  rights  of  a  botia  fide  pledgee  in 

to  the  estate;    though   in  law  a  some-  such  cases,  see  Schoul.  Bailm.  174;  c.  4, 

what  different   doctrine  appears  to  have  post. 

prevailed   where   the  representative   re-  ^  See   payment   of  claims,    §   430  ; 

deemed  with  his  own  funds.  Wms.  Ripley  v.  Sampson,  10  Pick.  373.  And 
Exrs.  1 661 ;  Wentw.  Off.  Ex.  186,  187. 

.379 


§   308  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

may  be  collected  on  maturity  and  the  security  discharged  ; 
or,  if  the  debtor  prove  delinquent,  the  security  may  be 
enforced  for  the  benefit  of  the  estate.  So,  too,  if  the  repre- 
sentative act  fairly  and  with  becoming  prudence,  the  security 
may  be  renewed  or  changed  while  the  debt  remains  outstand- 
ing ;  but  to  give  up  good  security  and  leave  the  claim  insuffi- 
ciently secured,  is  an  act  of  imprudence,  and  may  charge  the 
representative  personally.^  Loans  upon  security  are  often 
treated  as  permanent  investments,  and  accordingly  sold  and 
transferred  instead  of  being  called  in.^ 

§  307.  Gathering  the  Crop  or  Emblements.  —  Since  growing 
crops  on  the  land  of  the  decedent  are  assets,  the  personal 
representative  has  a  right  to  enter  and  take  them,  for  he  is 
accountable  therefor.  This  right  of  entry  and  possession 
cannot  be  divested  by  any  legal  stratagem  so  as  to  deprive 
one's  executor  or  administrator  of  his  right  to  gather  the 
crop  ;  and  if  interrupted  in  the  reasonable  exercise  of  his 
right  by  any  third  person,  he  may  oppose  him  by  force,  or, 
if  forcibly  molested,  may  have  the  offender  indicted.^ 

§  308.    "Want  of  Diligence  or  Good  Faith  in  collecting  Assets. 

—  If  the  executor  or  administrator  fails  to  use  due  care  and 
diligence  in  collecting  and  procuring  assets,  considering  the 
means  at  his  disposal,  he  will  be  held  liable  for  their  full 
value.  As  where  he  receives  notes  not  shown  to  be  desper- 
ate, and  makes  no  effort  to  collect  them.*     Good  faith,  too, 

see  EidenmuUer's  Estate,  Myrick  (Cal.)  whether  "slight   diligence"    or    "ordi- 

87.  nary  diligence  "  should  be  the  standard. 

1  See  Baldwin  v.  Hatchett,  56  Ala.  The    English    doctrine   inclines   to   the 

561;    Mosman  v.  Bender,  80  Mo.  579.  former  test,  and   the    American  to  the 

^  See  next  chapter  as  to  investments,  latter.     Sanderson  v.  Sanderson,  20  Fla. 

etc.  292.      Especially     is    the     representa- 

3  State  V.  Hogan,  2  Brev.  347.     See  've  liable,    when    other    circumstances 

as  to  procuring  an  order  from  the  pro-  indicate   a    disposition    biassed    to    the 

bate  court  to  sell  or  cultivate  a  crop,  person  of  the   debtor.     88   N.  C.  416. 

McCormick  w.  McCormick,  40  Miss.  700.  Where    the    executor    or    administrator 

And  see  McDaniel  v.  Johns,  8  Jones  L.  had  good  opportunity  to  sue  and  attach 

414.  property  of  the  debtor,  it  does  not  ex- 

*  Lowson  V.  Copeland,  2  Bro.  C.  C.  cuse  him  that   the  debtor  was  largely 

156;   Clack  V.  Holland,  19  Beav.  271;  indebted  to  others.     Munden  t^.  Bailey, 

Gates  V.  Whetst.  .ne,  8  S.  C.  244.     See  70  Ala.  63.     And   due    diligence  must 

next   chapter   ?-    to   the  measure  of  a  be  used  by  an   ancillary  administrator 

representati' <'■.-.     liability;     and    as    to  as  to    his  collecting  though    there   be 

380 


CHAP.  II.] 


COLLECTION    OF    THE    ASSETS. 


§  309 


should  always  characterize  the  representative's  dealings  with 
the  assets,  in  order  to  absolve  him  from  a  strict  personal  lia- 
bility for  their  value.^ 

Hence,  an  executor  or  administrator  who  has  been  guilty 
of  gross  negligence  or  wilful  default  in  failing  to  collect  a 
debt  due  the  estate  will  be  personally  charged  with  the  debt, 
and  sometimes  with  interest  besides.^  But  he  is  absolved, 
on  the  other  hand,  whenever  he  can  show  that  his  conduct 
was  such  as  a  prudent  man,  in  the  management  of  his  own 
business,  would  have  disj^layed,  and  that  he  had  made  proper 
exertion  to  collect,  and  had  acted  in  good  faith.^ 

§  309.  Collection  of  Interest-bearing  Debts  ;  Usury,  etc.  — - 
Interest-bearing  debts  due  the  estate  are  to  be  collected,  upon 
the  usual  observance  of  diligence  and  good  faith,  with  inter- 
est as  well  as  principal.* 


another  appointed  in  the  place  of  dom- 
icile.   88  Ind.  1 10. 

1  Whitney  v.  Peddicord,  63  111.  249. 
See  next  chapter. 

2  Tebl)S  V.  Carpenter,  I  Madd.  290 ; 
Wms.  Exrs.  1806;  Schultz  v.  Pulver,  3 
Paige,  182;  Brazeale  v.  Brazeale,  9  Ala. 
491;  Brandon  v.  Judah,  7  Ind.  545; 
Scarborough  v.  Watkins,  9  B.  Mon. 
540;  Smith  V  Hurd,  8  Sm.  &  M.  682; 
Holcomb  V.  Holcomb,  11  N.  J.  Eq.  281 ; 
Chariton's  Estate,  35  Penn.  St.  473; 
Southall  V.  Taylor,  14  Gratt.  269; 
Oglesby  v.  Howard,  43  Ala.  144;  19 
Fla.  300. 

*  Bryant  v.  Russell,  23  Pick.  546; 
Moore  v.  Beauchamp,  4  B.  Mon.  71; 
Glover  v.  Glover,  i  McMull.  Ch.  153; 
Bowen  v.  Montgomery,  48  Ala.  353; 
NeflPs  Appeal,  57  Penn.  St.  91 ;  Gray  z'. 
Lynch,  8  Gill,  403.  The  rule  of  the 
text  applies  with  its  qualification  where 
the  representative  forbears  suing,  takes 
security,  etc.,  and  the  debtor  absconds 
or  proves  insolvent.  See  Holmes  v. 
Bridgman,  37  Vt.  28;  Keller's  Appeal, 
8  Penn.  St.  288.  Or  subjects  the  estate 
to  the  liability  of  suretv  or  indorser, 
when    there  was  a  principal  debtor  to 

38 


pursue.  Tuggle  v.  Gilbert,  i  Duv.  340; 
Chamber's  Appeal,  11  Penn.  St.  436; 
Utley  V.  Rawlins,  2  Dev.  &  B.  Eq.  438; 
Keller's  Appeal,  8  Penn.  St.  288.  It  is 
not  culpable  negligence  to  omit  suing  a 
debtor  who  is  without  means.  7  Gratt. 
136,  160.  A  delay  to  press  claims  on 
an  administrator's  part,  because  a  will  is 
discovered  whose  production  for  pro- 
bate is  expected,  is  indulgently  treated. 
Hartsfield  v.  Allen,  7  Jones  L.  439. 
Undue  delay  causing  a  loss  to  the  estate 
is  inexcusable.  Wilson  7>.  Lineburger, 
88  N.  C.  416;  Anderson  v.  Piercy,  20 
W.  Va.  282. 

A  claim  reduced  by  judgment  may 
nevertheless  prove  desperate.  61  Miss. 
641. 

Whether  there  should  be  some  proof 
of  collection  or  negligence  in  order  to 
charge  the  executor  or  administrator, 
see  18  S.  C.  I;   56  Vt.  264. 

*  To  charge  the  representative  with 
receiving  usurious  interest  in  fullilment 
of  the  decedent's  contract  with  the 
debtor,  it  should  be  shown  that  he  ac- 
cepted the  money  with  knowledge  of 
the  usury.  Ossipee  v.  Gafney,  56  N.  H. 
352- 
I 


§  310  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  310.  What  may  be  taken  in  Payment;  Private  Arrange- 
ments with  Debtor,  etc. —  Debts  to  bc  settled  beneficially 
are  usually  to  be  paid  in  money  or  its  equivalent.  But  it 
is  held  no  breach  of  trust  for  the  personal  representative 
to  receive  as  money  that  which,  by  the  law  of  the  land,  is 
declared  to  be  lawful  currency  and  a  legal  tender  in  pay- 
ment of  debts ;  nor,  thus  receiving,  is  it  obligatory  upon 
him  to  account  in  coin  for  such  assets.^ 

Land  should  not  be  taken  in  payment  of  debts,  if  its  pro- 
ceeds may  be  had  instead ;  for  a  personal  representative  is 
not  legally  capable  of  dealing  with  such  property  and  trans- 
ferring title  in  a  satisfactory  manner.^  But  receiving  per- 
sonal property  of  the  debtor  or  its  avails  or  the  proceeds 
of  his  real  estate,  in  satisfaction  of  the  debt,  or  taking  secu- 
rity, real  or  personal,  for  a  future  settlement,  may  be  not 
only  prudent  but  highly  advantageous  in  the  interests  of  an 
estate  ;  and  the  representative  who  deals  thus  with  a  failing 
debtor,  in  the  exercise  of  ordinary  care  and  diligence,  will 
not  be  chargeable  for  such  of  the  indebtedness  as  he  fails 
eventually  to  realize.^  To  accept,  however,  in  satisfaction  of 
a  manifestly  good  and  collectible  claim,  the  assignment  or 
transfer  of  property  comparatively  worthless  betrays  culpable 
negligence  if  not  positive  dishonesty.* 

A  personal  representative  who  is  himself  indebted  to  a 
debtor  of  the  estate,  may,  if  he  chooses,  accept  a  discharge 

^  Jackson  v.  Chase,  98  Mass.  286.  '^  Weir  v.  Tate,  4  Ired.  Eq.  264.  He 
There  are  various  cases,  in  the  reports  is  chargeable  with  the  price  allowed 
of  our  Southern  States,  somewhat  in  by  him  for  the  lands  unless  those  en- 
conflict,  which  consider  this  principle  titled  to  the  estate  elect  to  take  it. 
in  connection  with  confederate  money  lb. 

issued    during    the    rebellion    of   1861.  ^  NefPs  Appeal,  57  Penn.  St.  91. 

See  Glenn  v.  Glenn,  41  Ala.  571 ;  Cope-  ^  Bass  v.  Chambliss,  9  La.  Ann.  376; 

land  V.  McCue,  5  W.  Va.  264;    Lagarde,  Parham  v.  Stith,  56  Miss.  465;   Scott  v. 

Succession  of,  20  La.  Ann.   148;   Shaw  Atchison,  36  Tex.   76.     The  rules  con- 

V.  Coble,    63    N.    C.    377 ;     Hendry    v.  cerning  application  of  proceeds  in  pay- 

Cline,   29  Ark.   414.      Fraudulently  to  ment  of  debts  apply  in  favor  of  repre- 

permit  the  discharge  of  a  debt  in  such  sentatives.     Frith  v.  Lawrence,  i  Paige, 

depreciated  currency  cannot  be  upheld.  434.     The  representative  may  execute  a 

Williams  w.  Skinker,  25  Gratt.  507.    But  release,   though  he   may  make   himself 

bond  fide  and    prudent  dealing  should  liable  for  a  devastavit.    Caldwell  v.  Mc- 

excuse  one.      Hutchinson  v.  Owen,  59  Vicar,  12  Ark.  746. 
Ala.  326. 

382 


CHAP.    II.]  COLLECTION    OF    THE    ASSETS.  §   T,lla 

of  his  own  debt  towards  the  payment  due  him  in  his  fiduciary 
capacity  ;  but,  so  doing,  he  makes  himself  answerable  to  the 
estate  for  the  whole  debt  so  settled.^  If  he  receive  a  note 
or  other  security  in  his  individual  right  for  a  debt  due  the 
estate,  he  is  liable  over  to  the  estate,  but  the  transaction  as 
between  himself  and  the  debtor  remains  valid.^ 

§  311.  Liability  where  Property  is  taken  or  Money  col- 
lected by  Mistake  as  Assets.  —  Where  property  is  taken  or 
money  received  by  the  representative,  through  mistake,  as 
assets,  he  must  restore  or  refund  to  the  party  rightfully 
entitled.  Applying  the  same  knowingly  in  course  of  ad- 
ministration does  not  excuse  him.'^ 

§  Sii  a.  Effect  of  Payment, etc. — A  bo)id  fidc  payment  even 
to  one  appointed  under  voidable  letters  which  cannot  be 
attacked  collaterally  will  discharge  a  debtor.'* 

1  Alvord  V.  Marsh,  12  Allen,  603.  the  estate  is  discountenanced  by  statute 

2  Biscoe  V.  Moore,  12  Ark.  77;   Ross     in  some  States.     Johnson  v.  Brown,  25 
V.  Cowden,  7  W.  &  S.  376.     The  prac-     Tex.  120. 

tice  of  selling  claims  against  an  estate         '^  McCustian  v.  Ramey,  33  Ark.  141. 
to  be  used  as  offsets  against  debts  due         *  88  N.  C.  584,  492;  supra,  §  160. 


§313  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


CHAPTER  III. 

CARE,    CUSTODY,    AND    MANAGEMENT    OF    THE    ASSETS. 

§  3 1 2.  Care,  Custody,  and  Management  of  Assets  an  Impor- 
tant Function.  —  The  care,  custody,  and  management  of  the 
persona]  property  or  personal  assets  belonging  to  the  estate 
is  an  important  function  of  administration.  The  funds  hav- 
ing been  gathered  in  for  the  purpose  of  making  disburse- 
ments in  due  order  to  creditors,  legatees,  and  those  entitled 
to  the  surplus,  which  disbursements  must  be  made  upon 
careful  deliberation  in  order  to  be  made  safely,  it  may 
happen  that  a  very  large  fortune  is  left  in  the  keeping  of 
the  personal  representative  for  a  considerable  period  of 
time,  much  of  it  to  be  placed  on  deposit  or  kept  in  securi- 
ties capable  of  being  quickly  converted  into*  cash.  To 
manage  such  a  fund  prudently  may  involve  the  collection  of 
accruing  dividends,  interest,  and  income,  and  perhaps  in 
instances  of  necessary  delay,  an  investment  or  re-invest- 
ment of  funds,  and  the  putting  of  money  or  other  personal 
property  to  such  temporary  use  as  may  bring  in  a  profit. 
Funds  of  the  deceased  left  invested  as  he  placed  them 
require  a  like  prudent  supervision.  A  will,  too,  may  direct 
investments  to  be  made. 

5  313.  Executor  or  Administrator  how  far  regarded  as  a 
Bailee  in  Respect  of  Responsibility. — There  is  a  certain  Stan- 
dard of  responsibility  by  which  the  personal  representative's 
liability  in  this  connection  should  be  measured.  Courts 
have  defined  that  standard  in  many  instances  as  in  essence 
the  responsibility  of  a  bailee ;  of  a  gratuitous  bailee  or  of 
a  bailee  for  recompense,  as  the  case  may  be.  Such  a  test 
is  certainly  a  convenient  one ;  and  especially  where  applied 
to  what  is  strictly  the  care  and  custody  of  assets  already 
in  the  corporeal  possession  of  the  executor  or  administrator. 

384 


CHAP.  III.]  MANAGEMENT    OF    THE    ASSETS.  §  3M 

But  this  fundamental  doctrine  of  administration  responsi- 
bility extends  to  the  manner  of  procuring  and  collecting 
the  assets,  of  managing  the  available  funds,  of  making  sales, 
of  paying  out,  of  distributing  and  winding  up,  and,  in  a 
word,  of  appropriating  the  decedent's  estate  to  the  just 
purposes  of  administration.  The  underlying  principle,  there- 
fore, like  that  applicable  to  all  trustees,  is  not,  perhaps, 
coincident  with  the  law  of  bailments  as  commonly  expounded, 
but  rather,  transcending  the  limits  of  that  law,  advances 
what  we  may  call  the  bailment  standard  of  accountability 
to  the  domains  of  another  relation,  distinct,  though  in  most 
respects  analogous,  namely,  the  fiduciary  one.^ 

§  3 14.  As  to  Care  and  Custody  ;  Responsibility  of  Executor  or 
Administrator  like  that  of  the  Bailee.  —  As  for  the  simple  care 
and  custody  of  the  personal  property  reduced  to  his  corporeal 
possession  and  control,  whether  it  be  of  things  literally  cor- 
poreal or  of  securities  which  represent  incorporeal  money 
rights,  the  executor  or  administrator  is  certainly  bound  like 
a  bailee  in  point  of  responsibility,  according  to  the  current  of 
modern  opinion.  Thus,  if  personal  property  belonging  to 
the  estate  be  destroyed  or  captured  by  a  public  enemy,  or 
perish,  or  deteriorate  from  some  internal  defect,  or  through 
the  operation  of  natural  causes,  or  in  general,  because  of  inev- 
itable accident,  the  executor  or  administrator  who  has  hon- 
estly exercised  ordinary  care  and  diligence  in  averting  or 
lessening  the  mischief,  escapes  personal  liability  for  the 
loss.  He  is  himself  no  insurer  against  accidents,^  though 
average  prudence  as  to  certain  kinds  of  property  might  per- 
haps have  required  him  to  keep  the  property  insured  against 
loss  by  fire.^ 


^  See  Schoul.  Bailments,  1-5.  usage  among  prudent  business  men  in 

2  See   Schoul.   Bailm.    104;    Croft  v.  any  age  should  largely  alTect  such  issues. 

Lyndsey,  2  Freem.  i.  And,  however  it  may  be  as  to  insurance 

^  Semble,   according  to  earlier  cases,  of  household  effects,  a  stock  of  goods  in 

that  the  personal  representative  is  not  a  store  or  warehouse  is  very  commonly 

bound  to  insure  or  continue  insurance  insured  at  this  day,  as  also  are  buildings 

on  the  decedent's  property.     Bailey  v.  and  improvements  upon  real  estate. 
Gould,  4  Y.  &  C.  221.     But  prevailing 


§315  EXECUTORS    AND   ADMINISTRATORS.  [PART  IV. 

§  3  1 5.  The  same  Subject ;  Whether  this  Responsibility  is  that 
of  a  Gratuitous  Bailee  or  a  Bailee  with  Recompense.  —  But  a  lim- 
itation of  bailment  liability,  like  that  we  have  just  stated,  ap- 
plies equally  in  favor  of  bailees  with  and  bailees  without  recom- 
pense. Yet  bailment  responsibility  differs  by  the  well-known 
rule,  according  as  the  bailment  responsibility  in  question  was 
for  the  bailor's  sole  benefit,  or  for  bailor's  and  bailee's  mutual 
benefit ;  in  the  former  case  "slight  "  is  the  usual  test  as  to 
the  care  and  diligence  requisite,  while  in  the  latter  there 
must  have  been  at  least  "ordinary  "  care  and  diligence  exer- 
cised. In  other  words,  a  bailee  serving  with  recompense  is 
bound  legally  to  the  use  of  a  greater  measure  of  care  and 
diligence  than  a  bailee  who  serves  wholly  without  recom- 
pense.^ 

Now  the  fundamental  English  principle  is,  as  we  shall  show 
hereafter,  that  an  executor  or  administrator  shall  be  reim- 
bursed for  his  outlays,  but  shall  have  no  remuneration  for  his 
own  time,  trouble,  and  responsibility  in  settling  the  estate  ; 
whereas,  in  most  of  the  United  States  compepsation  is  now 
regularly  allowed  him.^  A  corresponding  difference  of  pre- 
cedents may  therefore  be  expected  in  defining  the  essential 
standard  of  bailment  or  fiduciary  liability  with  relation  to 
such  officials.  Indeed,  the  rule  as  now  set  forth  in  the  Eng- 
lish courts,  both  of  law  and  equity,  is  that  the  personal  repre- 
sentative shall  not  be  chargeable  for  a  loss  of  assets  which 
have  come  into  his  possession,  unless  wilful  default  be 
shown  ;  ^  though  the  preferable  legal  statement  would  be  that 
an  executor  or  administrator  stands  in  the  condition  of  a  gra- 
tuitous bailee,  so  that  "  slight  diligence  "  on  his  part  is  need- 
ful, but  no  more.*  Good  faith,  moreover,  or  common  honesty, 
is  always  demanded  of  a  bailee  or  fiduciary.  It  is  true  that 
Lord  Ellenborough  once  laid  it  down  that  the  bailment 
theory  did  not  apply  in  common-law  courts,  but  that  an  exec- 
utor might  there  be  held  liable  for  the  loss  of  his  testator's 

1  Schoul.  Bailm.  43,  103.  *  See  Wms.  Exrs.   1807;   Goodfellow 

2  Post,  Part  VII.,  as  to  accounts;  v.  Burchett,  2  Vern.  299;  Jones  v. 
Wms.  Exrs.  1852.  Lewis,  2  Ves.  Sen.  240. 

8  Job  V.  Job,  L.  R.  6  Ch.  D.  562,  per 
Jessel,  M.  R. 

386 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   3lG 

assets  when  they  had  once  come  into  hi.s  hands  ;  and  yet, 
supposing  the  courts  of  common  law  to  be  at  variance  on  this 
point,  the  rule  of  equity  must  at  the  present  day  prevail.^ 

On  the  other  hand,  in  the  courts  of  most  or  all  of  the 
United  States,  inasmuch  as  the  executor  or  administrator  is 
entitled  to  compensation  for  his  service,  we  apprehend  that 
the  rule  of  liability  must  be  stated  more  strongly,  and  so  as 
to  bind  the  representative  to  a  measure  of  care  and  diligence 
corresponding  to  that  of  bailees  for  hire  ;  in  other  words,  so 
as  to  require,  besides  good  faith  on  his  part,  that  degree  of 
care  and  diligence  which  men  ordinarily  bestow  in  the  man- 
agement of  their  own  affairs.^  And  such  in  truth  is  the  prev- 
alent common-law  and  equity  rule  in  this  country,  and  the 
doctrine  most  consonant  to  sound  reason.  Provided,  there- 
fore, the  personal  representative  be  brought  within  the  pro- 
tection of  such  a  rule,  having  also  acted  bond  fide,  he  will  not 
be  held  liable  for  money  of  the  estate  stolen  by  burglars  from 
his  safe,^  or  lost  through  the  insolvency  of  the  bank  where  he 
has  deposited  it.*  A  court  of  probate  acts  upon  equitable 
principles  in  settling  the  accounts  of  executors  and  adminis- 
trators, and  may  properly  allow  him  for  losses  thus  excusably 
incurred  in  the  course  of  his  care  and  custody  of  the  assets.^ 

§  316.  Liability  of  Personal  Representative  in  the  General  Man- 
agement of  Estate.  — This  liability  of  a  personal  representative 
for  all  consequences  resulting  from  the  failure  of  due^  care  and 
diligence  or  good  faith,  while  performing  his  trust,  is  trace- 
able in  various  other  connections  elsewhere  dwelt  upon  in  this 
volume.     As  in  procuring  the  assets,  taking  possession  of  the 

1  Job  V.  Job,  supra,  per  Jessel,  M.  R.  deposited  it  with  a  bank  known  to  be 

2  Mikell  V.  Mikell,  5   Rich.  Eq.  220;  crippled  in  resources,  he  woulii  prohal)ly 
Rubottom   V.    Morrow,    24    Ind.    202;  have  been  compelled  to  bear  the  loss. 
Whitney   v.     Peddicord,    63    111.    249;         *  Twitty  z'.  Houser,  7  S.  C.  153.     The 
Twitty  V.  Houser,  7  S.  C.    153;    Bosie,  deposit  should  have  been  in  trust.     53 
Estate  of,  2   Ashm.    437.     As  to  an  ad-  Ala.  169. 

ministrator's  want  of  ordinary  care  and  ^  Upson  v.  Badeau,  3  Bradf.  Sur.  13. 
diliorence  in  getting  in  a  crop,  see  Cooper  *  /.<>.,  as  the  writer  presumes,  "  slight  " 
V.  Williams,  109  Ind.  270;  §  226.  according  to  the  English  rule,  and  "  or- 
^  Stevens  v.  Gage,  55  N.  H.  175.  dinarv  "  according  to  the  American;  the 
Had  such  representative  kept  a  large  question  of  a  rightful  compensation  fur- 
sum  of  monev  belonging  to  the  estate  nishing  the  basis  of  a  legal  distinction. 
in  the  unlocked  drawer  of  his  desk,  or  Supra,  §  315. 

1>^7 


§  317  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

personalty,  and  realizing  upon  notes  and  other  causes  of  ac- 
tion ;  ^  or  in  getting  a  fraudulent  transfer  by  his  decedent  set 
aside ;  ^  or  in  selling,  or  in  transferring  the  assets  absolutely 
or  by  way  of  security  ;  ^  or  in  compromising  claims  whether 
against  or  in  favor  of  the  estate,  adjusting  controversies, 
prosecuting  or  defending  suits,  and  submitting  interests  com- 
mitted to  his  discretion  to  arbitration  ;^  or  in  winding  up  the 
estate  ;'^  and,  in  general,  upon  his  accounting  with  the  probate 
court  for  the  due  performance  of  his  ofificial  duties.^  So,  too, 
as  concerns  the  conduct  of  a  successor  with  reference  to  in- 
vestigating the  acts  and  conduct  of  his  predecessor.'  For 
this  bailment  doctrine,  being  founded  in  sound  common  sense, 
permits  of  a  wide  range  of  analogous  application  ;  nor,  indeed, 
has  it  been  disregarded  by  the  legislature  in  framing  statutes 
which  affect  the  settlement  of  the  estates  of  the  dead,  nor  by 
courts  of  probate  and  equity,  whose  duty  it  is  to  take  juris- 
diction of  such  settlements. 

§  3 1 7.  Management  of  the  Estate  ;  Collection  of  Income,  etc.  ; 
Responsibility  of  the  Representative.  —  In  general  the  execu- 
tor  or  administrator  is  required  to  be  faithful,  honest,  and 
diligent,  as  to  the  management  of  assets  in  his  hands  or  sub- 
ject to  his  control.  If  he  retains  funds  of  the  estate  to  meet 
the  exigencies  of  his  office,  and  so  as  to  discharge  statute 
allowances,  debts  or  legacies,  as  they  may  become  payable 

1  Supra,  §§  308,  310;  McCall  v.  getting  an  ancillary  appointment  in  or- 
Peachy,  3  Munf.  (Va.)  288;  Connelly's  der  to  collect  assets  abroad.  Williams 
Appeal,  I  Grant,  366;   Gates  v.  Whet-     v.  Williams,  79  N.  C.  417. 

stone,  8  S.  C.  244;   Stark  v.  Hunton,  3  The  representative  is  chargeable  with 

N.  J.  Eq.  300 ;   NefPs  Appeal,  57  Penn.  the  value  of  personal  property  belonging 

St.  91.  to  the  estate  and  lost  by  his  negligence, 

2  Danzey  v.  Smith,  4  Tex.  41 1 ;  Mc-  although  it  never  came  into  his  posses- 
Lendon  v.  Woodward,  25  Ga.  252.  sion;    for    diligence    in   pursuing  assets 

3  See  next  chapter;  Dugan  v.  Hoi-  not  in  his  possession  is  required.  Tuttle 
lins,  1 1  Md.  41 ;  Griswold  v.  Chandler,  v.  Robinson,  33  N.  H.  104.  Not,  how- 
5  N.  H.  492.  ever,  certainly,  as   to    assets   of  whose 

*  Woods   V.    Elliott,   49    Miss.    168;  existence    he  was    excusably    ignorant. 

Hoke  V.  Hoke,  12  W.  Va.  427.  Jones  v.  Ward,  10  Yerg.  160. 

^  Cooper  z-.  Cooper,  "]"]  Ya..  198.  Though    an   illegal    bailment  by  the 

^  Post,  Part  VII.,  as  to  accounts;    Kee  executor    or    administrator    cannot    be 

V.  Kee,  2  Gratt.  116.  avoided   by    him,  yet    he   may   recover 

^  See  c.  5,  post;  Cock  v.  Carson,  38  back  the  property  after  the  bailment  has 

Tex.  284.  Or  even,  as  concerns  a  prin-  expired.  English  v.  McNair,  34  Ala.  40. 
cipal  representative,  with  reference  to 

388 


CHAP.   III.]  MANAGEMENT   OF    THE    ASSETS.   •  ^  3^7  <^ 

and  ultimately  for  a  distribution  of  the  surplus  or  payment 
of  the  residue  to  the  person  or  persons  lawfully  entitled 
thereto,  it  is  incumbent  on  him  to  collect  dividends,  interest, 
or  income  upon  invested  funds,  not  lying  idle,  with  the  same 
measure  of  care,  diligence,  prudence,  and  good  faith  as  applies 
to  collecting  and  reducing  to  possession  the  principal  of  the 
assets.^  And  as  for  choosing  between  keeping  funds  invested 
or  suffering  them  to  lie  idle,  the  same  prudent  and  faithful 
regard  for  the  duties  of  his  office  should  afford  the  criterion.* 
In  the  general  management  of  the  estate,  our  leading 
maxim  still  applies  that  honesty,  reasonable  ^  care  and  proper 
diligence  are  expected  from  the  personal  representative,  and 
ought  ever  to  be  brought  to  the  fulfilment  of  the  trust ;  but 
that  wherever  these  qualities  have  been  exercised,  the  repre- 
sentative will  not  be  held  personally  responsible  for  losses 
which  ordinary  prudence  could  not  foresee  and  avoid,  nor 
charged  with  that  which  he  never  did  nor  could  thus  have 
realized.* 

§  317^-  -^3  between  Investing  Cash  or  Using  it  for  Payments, 
Deposits,  etc.  —  All  other  things  equal,  there  can  be  no  better 
use  for  ready  cash  or  funds  on  hand  than  in  settling  current 
demands  upon  the  estate.  And  if  the  executor  or  adminis- 
trator, instead  of  doing  this,  places  the  cash  on  deposit  at 
interest,  or  otherwise  invests  the  fund,  he  runs  a  risk  of 
culpable  loss.  Especially  is  this  true,  where  he  borrows  or 
advances  from  some  other  source  to  meet  these  current  de- 
mands.^     But    a   bank   deposit    suitably  distinguished    may 

1  Dortch  V.  Dortch,  71  N.  C.  224;  American  standard,  and  "slight,"  ac- 
Ray  V.  Doughty,  4  Blackf.  115.  Usury  cording  to  the  English.  Supra,  §  315. 
received  by  the  decedent  or  by  the  rep-  *  Voorhees  v.  StoothofT,  6  llalst.  145; 
resentative  himself  upon  the  decedent's  Williams  v.  Maitland,  i  Ired.  Eq.  92; 
property  must  be  accounted  for.  Proctor  Webb  t/.  Bellinger,  2  Desau.  482;  Cal- 
V.  Terrill,  8  B.  Mon.  451.  houn's  Estate,  6  Watts,  185. 

2  Hence,  his  office  being  primarily  to  ^  Guthrie  v.  Wheeler,  51  Conn.  207. 
gather  in,  disburse,  and  distribute  with  Executor  held  liable  for  depositing  a 
reasonable  expedition,  the  keeping  funds  large  amount  in  a  savings  bank  which 
outstanding  and  productive  becomes  a  afterwards  failed,  while  paying  debts 
matter  of  only  secondary  consequence  with  his  own  money.  And  as  to  hoard- 
with  an  executor  or  administrator.  ing  money  instead  of  paying  it  cut,  see 

8 /.tf.,  "ordinary,"  according  to   the     Rogers  ».  Tullos,  51  Miss.  685;  §  322. 

389 


§  3l8  EXECUTORS   AND    ADMINISTRATORS.  [PART  IV. 

prove  advantageous  for  drawing  checks  against  it  for  current 
payments ;  and,  since  claims  are  not  always  payable  at  once 
in  prudent  administration,  or  especial  delay  may  be  occa- 
sioned, money  not  wanted  for  immediate  payments  may  well 
be  deposited  in  some  bank  of  good  standing  at  interest  or 
otherwise.^ 

Trust  companies  are  chartered  in  various  States  at  the 
present  day  as  legal  depositaries,  and  in  a  legal  depositary 
(though  one  is  not  usually  obliged  to  employ  such  a  concern) 
an  executor  may  deposit  his  trust  fund  instead  of  the  common 
deposit  banks  with  little  peril  of  his  discretion.  Any  savings 
bank  or  other  depositary  may  be  designated  by  local  statute 
as  a  legal  one  for  such  purposes.^  And  the  representative 
must  not  deposit  in  his  individual  name  if  he  wishes  to  es- 
cape personal  liability  for  losses.^ 

§  318.  Paying  Assessments  ;  Discharging  Liens,  etc.,  upon  Per- 
sonal Assets.  —  Taxes  upon  the  personal  estate  of  a  deceased 
person  should  be  duly  discharged  according  to  law  by  the  per- 
sonal representative ;  not,  however,  without  similar  qualifica- 
tions ;  for  if  the  assets  prove  insufficient  for  discharging  claims 
having  a  legal  preference,  the  taxes  he  pays  become  eventually 
a  disbursement  from  his  private  means.  Where  shares  of  stock 
owned  by  the  decedent  are  of  market  value,  it  may  be  incum- 
bent upon  the  executor  or  administrator,  in  the  exercise  of 
becoming  prudence,  to  pay  assessments  thereon  and  redeem 
them  for  the  benefit  of  the  estate,  such  assessments  consti- 
tuting a  lien  on  the  shares.^     But  if  the  shares  are  worthless, 

^  Guthrie  v.  Wheeler,  supra.  Pend-  But  here  the  power  of  individual  con- 
ing a  contest  as  to  the  validity  of  the  trol  was  taken  against  the  administrator; 
will,  for  instance.  lb.  And  see  Jaco-  he  deposited  in  his  own  individual  name 
bus  V.  Jacobus,  37  N.  J.  Eq.  17.  in  a  bank,  funds  of  the  estate,  and  on 

2  A  prol^ate    court   is  not   often  em-  the  bank's  failure  he  was  held  liable, 

powered  to  order  the  deposit  of  funds  And  this  though  he  had  no  other  funds 

with  a  trust  company,      i  Dem.  302.  in  that  bank,  and  informed  the  officers, 

^  See  Williams  v.  Williams,  55  Wis.  when  he    deposited,  that  the  fund  was 

300,  and  numerous  cases  cited.     Some  held  by  him  in  trust.     And  see  §  329; 

cases  certainly  protect  one's  representa-  Summers  v.  Reynolds,  95  N.  C.  404. 
tive   character  where  the    form  of  ac-         *  Ripley  v.  Sampson,   10  Pick.   373; 

count  enables  the  identity  of  the  trust  Tuttle  v.  Robinson,  33  N.  H.  104. 
deposit  to  be  traced  and  distinguished. 


CHAP.  III.]  MANAGEMENT    OF   THE    ASSETS.  §    321 

and  will  probably  continue  to  be  so  after  assessments  are 
paid,  he  is  not  justified  in  paying  out  the  assets  for  that  pur- 
pose, nor  in  redeeming  the  stock.^ 

The  personal  representative  deals  with  liens  as  he  finds 
them  when  his  own  title  vests  ;  and  such  liens  he  cannot  dis- 
regard. But,  as  already  intimated,  he  cannot  in  his  represen- 
tative capacity  create  a  lien  on  the  assets  for  a  debt  due 
during  the  decedent's  lifetime  so  as  to  impair  the  rights  of 
other  creditors.^  Nor  can  he  bind  an  insolvent  estate  by  his 
agreement  in  such  a  manner  as  to  take  assets  out  of  the  legal 
course  of  distribution  provided  for  by  that  contingency.^ 

§   319.    Personal   Representative's  Vote  upon   Stock.  —  The 

assent  of  the  personal  representative,  as  stockholder  to  cor- 
porate acts  requiring  the  stockholders'  assent,  may  be  valid, 
though  the  stock  does  not  stand  in  his  name,  and  his  assent 
is  given  in  his  personal  capacity.* 

§  320.  Putting  Assets  into  a  Salable  Condition,  etc. ;  Repair- 
ing, etc.  —  The  representative  who  finds  a  raw  commodity  on 
hand,  — tobacco,  for  instance,  —  may  lawfully  put  it  into  a  sal- 
able condition,  provided  he  act  prudently  or  honestly,  within 
the  usual  rule ;  ^  and  the  same  may  be  said  of  repairing 
damaged  goods,  or  finishing  up  his  decedent's  jobs,  or  procur- 
ing materials  for  the  completion  of  contracts  which  were 
obligatory  upon  the  estate,  especially  if  remunerative.^  But 
the  trust  moneys  should  not  be  misappropriated  by  the  rep- 
resentative upon  any  pretext  of  repairing  or  protecting  assets  ; 
nor  so  as  to  make  good  a  loss  which  was  occasioned  by  his 
own  breach  of  trust ;  nor  so  as  carelessly  to  waste  the  estate 
in  needless  and  unremunerative  expenditures.^ 

§  321.  Responsibility  of  Personal  Representative  for  Acts  of 
his  own  Agent,  Attorney,  etc.  —  It  is  true  that  persons  inter- 
ested in  an  estate  are  not  bound  to  pursue  assets  into  the 

^  Ripley   v.  Sampson,   10    Pick.  373.  *  Pike  County  v.  Rowland,  94  Penn. 

And  see  Stow's  Estate,  Myrick  (Cal.)  St.  238. 

97.  *  Whitley  v.  Alexander,  73  N.  C.  444. 

2  Ford  V.   Russell,   I   Freem.  Ch.  42;  ^  ggg  Oram's  Estate,  9  Phila.  358. 

Ga.  Dec.  Part  II.  7;   supra,  §  256.  '  See  Lacey  v.  Davis,  4  Redf.  (N.  Y.) 

*  James's  Appeal,  89  Penn.  St.  54.  402. 


§    321  EXECUTORS    AND    ADMINISTRATORS.  [PART    IV. 

hands  of  the  representative's  attorney,  but  may  hold  the  rep- 
resentative directly  responsible  for  what  the  attorney  obtained. ^ 
But,  consistently  with  the  probate  and  equity  view  of  the  execu- 
tor's or  administrator's  functions,  the  question  remains  essen- 
tially one  of  good  faith  and  reasonable  diligence  on  his  part. 
Where,  therefore,  acting  honestly  and  with  ordinary  discre- 
tion and  care,  the  executor  or  administrator  entrusts  claims 
due  the  estate  to  an  attorney,  he  is  not  chargeable  personally 
with  the  loss,  should  the  attorney  collect  the  money,  apply  it 
to  his  own  use,  and  become  insolvent.^  But  it  is  culpable 
negligence,  within  this  rule,  to  employ  a  novice  or  one  evi- 
dently unskilful  to  manage  a  transaction  of  great  magnitude 
and  difficulty  when  the  estate  could  have  paid  for  a  compe- 
tent person.^  Upon  the  same  general  principle,  the  personal 
representative  is  not  responsible  for  a  debt,  lost  by  mistake 
in  pursuing  remedies,  where  he  acts  in  good  faith  and  under 
the  advice  of  competent  counsel.*  Not  for  the  misconduct 
of  an  auctioneer,  not  imprudently  employed  by  him,  who  sells 
assets  and  appropriates  the  proceeds;^  the  representative 
not  being  remiss  in  taking  steps  for  legal  redress.  But  if  the 
executor  or  administrator  trusts  assets  in  a  careless  manner, 
or  to  those  he  had  no  right  or  no  need  to  employ,  he  is  liable 
to  the  estate  for  the  ill  consequences.^ 

1  Green  v.  Hanberry,  2  Brock.  403.  148.  And  see  Marshall  v.  Moore,  2  B. 
A  hired  bailee  responds  in  general  for     Mon.  69. 

the  negligent  and  unskilful  work  of  his  *  King   v.    Morrison,    I    Pen.    &  W. 

own    sub-agents    or    servants    just    as  (Penn.)  188;   4  Johns.  Ch.  619.      Qu. 

though  his  own  want  of  ordinary  dili-  whether  here,  if  the  attorney  or  coun- 

gence,  not  theirs,  caused  the  damage,  sel  was  grossly  at  fault,  legally  liable  in 

Schoul.  Bailm.  III.  damages,    and    pecuniarily   responsible, 

2  Rayner  v.  Pearsall,  3  Johns.  Ch.  the  representative,  in  the  exercise  of 
578;  Christy  v.  McBride,  i  Scam.  (111.)  reasonable  dihgence,  should  attempt, 
75.  For  the  analogous  rule  of  bail-  on  behalf  of  the  estate,  to  pursue  him. 
ments,  see  Schoul.  Bailm.  in.  The  The  bailee  may  sue  his  sub-bailee  for 
scope  of  the  sub-agent's  authority  is  negligent  performance,  causing  his  dam- 
material.  As  to  thefts,  etc.,  outside  age.  McGill  v.  Monette,  37  Ala.  49. 
such  scope,  the  question  is,  whether  the  And  see  Calhoun's  Estate,  6  Watts, 
bailee  used  ordinary  diligence  in  the  185;  Telford  v.  Barry,  i  Iowa,  591 ; 
choice  and  continuous  employment  of  Bacon  e/.  Bacon,  5  Yes.  335;  Clough  z'. 
such  person.     lb.     And  see  as  to  bur-  Bond,  3  M.  &  Cr.  497. 

den  of  proof  in  such  a  case,  Brier,  Re,         5  Edmond  v.  Peake,  7  Beav.  239. 
26  Ch.  D.  238.  6  I   Anstr.    107;    Ghost  v.  Waller,  9 

2  Wakeman  v,  Hazleton,  3  Barb.  Ch.     Beav.  497 ;  Matthews  v.  Brise,  6  Beav. 


CHAP.  III.]  MANAGEMENT    OF    THE    ASSETS.  §   322 

This  appears  decidedly  the  better  view  of  the  case  as 
between  the  personal  representative  and  those  he  may  employ 
in  the  course  of  administration  ;  though  the  old  authorities 
sometimes  laid  down  the  rule  at  common  law  more  harshly. 
It  has  been  said  in  times  past  that  an  executor  or  administrator 
becomes  responsible  if  his  agent  embezzles  the  funds  of  the 
estate.^  But  even  prudent  men  cannot  hope  to  manage  prop- 
erty without  errors  of  judgment,  entailing  occasional  loss  ; 
and  there  is  neither  justice  nor  sound  policy  in  holding  the 
representative  to  the  exceptional  liability  of  an  innkeeper  or 
common  carrier,  especially  where  his  service  is  without 
remuneration  ;  he  stands  rather  as  any  prudent  owner  of  the 
personal  property  might  himself,  were  he  still  alive  and  man- 
aging his  own  affairs,  so  far  as  blame  is  concerned. 

§  322.  Duty  as  to  investing  Assets  or  placing  the  Funds  on 
Interest.  —  If,  in  pursuance  of  his  trust,  considerable  sums 
of  money  must  necessarily  lie  idle  for  some  time,  —  as  where, 
in  particular,  searching  out  the  persons  entitled  to  the  surplus 
is  perceived  to  involve  much  delay,  —  the  personal  representa- 
tive is  not  only  permitted,  but  encouraged,  according  to  the 
usual  rule,  to  permit  quick  assets  which  are  productive  to 
stand  for  a  time  uncollected. 

In  most  American  States,  too,  the  executor  or  administra- 
tor is,  by  direct  or  indirect  intendment  of  the  law,  allowed  to 
put  the  money  where  it  may  draw  interest,  and  even  to  invest 

239  ;   McCloskey    v.   Gleason,    56   Vt.  he  receives  it,  it  is  the  same  thing  as  if 

264.     Where  some  near  relative  or  per-  the  executor    himself  had  actually  re- 

sonal  favorite  is  permitted    to  manage  ceived    it,    and    will    be    assets    in    his 

the  estate,  and  make  bad    investments,  hands;    and,  consequently,  appointing 

the    executor     or    administrator    must  another  to  receive,  who  will  not  repay, 

respond  for  the  loss.      Earle  v.  Earle,  \^  z.  devastavit."     Wms.  Exrs.  181 7. 

93  N.  Y.  104.  Stat.  22  &  23  Vict.  c.  35,  §  28,  con- 

1  6   Mod.   93;    Toller   Exrs.   426;     l  firms  the  general  rule   indicated  by  the 

Dane  Abr.  590,  art.  16;  Doyle  z^.  Blake,  English  equity  decisions;     so  that,  for 

2  Sch.  &  Lef.  243;    Wms.  Exrs.   181 6,  defaults  of  another  employed  by  him, 

1820.      And    see    Lord    Cottenham   in  the  personal  representative  shall  only  be 

Clough  V.  Bond,  3  My.  &  Cr.  496.     The  charged  for  his  own    "  wilfid  default." 

case    in    6    Mod.    93,  however,  raised  Wms.  Exrs.   1828.      This  changes    the 

merely  a  question  of  costs.    "  Generally  old  law,  of  course,  if  the  law  in  truth 

speaking,"   as  the    old   rule    has    been  were  as  stated  above  in  this  note.     See, 

stated,  "  if  an  executor  appoints  another  further,   Lyon   v.   Lyon,    I    Tenn.  Ch. 

to  receive  the  money  of  his  testator,  and  225. 

393 


§  322  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

funds  in  interest-bearing  securities.^  But  the  rule  of  ordinary 
prudence  and  dilij^ence,  as  well  as  good  faith,  is  still  exacted 
under  such  circumstances ;  and  this,  moreover,  with  special 
consideration,  both  to  the  legislative  policy  of  the  State  or 
country,  as  concerns  investments  by  an  executor  or  adminis- 
trator, and  the  time  and  mode  of  settling  the  estate.  For, 
unlike  testamentary  trustees,  the  primary  duty  of  an  executor 
or  administrator  is  to  settle  or  wind  up  an  estate  ;  and  ac- 
cordingly to  reduce  the  assets  to  cash  or  readily  convertible 
personalty,  and  to  pay  over  or  transfer  it  to  others  in  pursuance 
of  the  peculiar  trust  reposed  in  him.  When  the  executor  or 
administrator  has  money  of  the  estate  in  his  hands,  and  there 
are  no  reasons  why  he  should  retain  it,  and  he  has  full  op- 
portunity to  pay  it  out  to  the  persons  entitled,  he  has  no  right 
to  retain  it  longer  than  the  responsibilities  of  his  trust  make 
it  prudent  and  necessary,  on  any  pretext  that  he  has  loaned 
it  out  for  the  sake  of  interest.^ 

Any  savings  or  accumulations  out  of  the  estate,  together 
with  interest,  dividends,  and  income,  become  assets  in  the 
hands  of  the  personal  representative,  to  be  divided  and  paid 
over  in  the  same  manner  as  the  principal  fund.^ 

Under  the  statutes  of  some  States,  funds  collected  by  a 
fiduciary  are  required  to  be  deposited  with  particular  banks 
or  after  a  particular  manner.*  Such  legislative  directions 
should  be  strictly  heeded.  And  the  executor  or  administra- 
tor who,  in  connection  with  the  deposit,  enters  into  other 
transactions  with  the  banker  which  deviate  from  the  pre- 
scribed line  of  his  duty,  renders  himself  personally  liable.^ 
But,  in  general,  the  rule  of  probate  and  equity  is,  that  where 
the  deposit  of  funds  belonging  to  the  estate  was  made  and 
kept  from  necessity,  or  conformably  to  common  and  reason- 
able usage,  and  without  wilful  default,  the  personal  represen- 


1  Moore  v.  Felkel,  7  Fla.  44;   Dortch  Ann.   279;    Reed   v.  Crocker,    12    La. 
V.  Dortch,  71  N.  C.  224.  Ann.  445;   Shipley,  Ex  parte,  4   Md. 

2  Wood  V.   Myrick,    17    Minn.   408;  493. 

Dortch  V.  Dortch,  71  N.  C.  224.  ^  Wms.  Exrs.   1818;   Darke  v.   Mar- 

8  WingatcT/.Pool,  25  111.  118;  §317^.  tyn,  i   Beav.  525;   Challen  v.  Shippam, 

<  Livermore   v.    Wortman,   25    Hun,  4  Hare,  555. 

341;    Pasquier,   Succession  of,   li    La. 

394 


CHAP.  III.]  MANAGEMENT   OF   THE    ASSETS.  §  323 

tative  shall  not  be  chargeable  with  a  loss.^  We  assume,  of 
course,  that  the  trust  fund  was  kept  as  distinct  from  his  own 
bank  account,  and  that  the  bailment  standard  of  care  and 
diligence  was  consistently  maintained.^ 

§  323.  Investments,  how  to  be  made,  etc.  ;  Rule  of  Liability. 
—  The  doctrine  of  diligence  and  good  faith  maybe  followed 
into  the  subject  of  an  executor's  or  administrator's  invest- 
ments. If  such  an  official  is  to  invest  funds  at  all  he  should 
have  a  reasonable  time  in  which  to  do  so.^  As  to  the  precau- 
tions to  be  taken  and  the  extent  to  which  the  representative 
may  lend  with  reference  to  the  value  of  property  for  invest- 
ment, where  he  loans  upon  the  security  of  real  estate  mort- 
gages, there  are  numerous  decisions  ;*  and  usually  only  what 
are  called  first-class  mortgages,  or  mortgages  whose  security 
is  of  value  considerably  larger  than  the  amount  of  the  loan, 
should  be  selected. 

In  English  practice,  a  trustee  or  executor,  after  a  decree  to 
account,  is  not  permitted  to  lay  out  money  on  mortgage  or 
other  security,  without  the  leave  of  the  court. ^  And  while 
the  American  rule  generally  leaves  more  to  the  personal  rep- 
resentative's own  discretion,  it  certainly  discourages  long 
loans  upon  securities  not  easily  convertible,  of  moneys  which 
may  be  required  for  the  immediate  purposes  of  administra- 
tion ;  looking  rather  to  temporary  loans  and  investments,  and 
to  the  temporary  continuance  of  safe  securities  originally 
received  by  him  as  assets  of  the  estate.  But  should  a  mort- 
gage security,  prudently  and  properly  taken,  turn  out  bad,  the 
fiduciary's  good  faith  and  observance  of  reasonable  care  and 
diligence  shall  shield  him.*^  In  English  practice,  such  securities 

1  Churchill    v.  Hobson,  i    P.   Wms.  «  See  78  Va.  665. 

243;  Castle  V.  Warland,  32  Beav.  660;  *  Brown  v.  Litton,  i   P.  Wms.   141 ; 

Johnson    v.    Newton,    11     Hare,    160;  Stickney  w.  Sewell,  i  M.  &  Cr.  8;   Ingle 

Wms.  Exrs.    1818;    Norwood   v.    Har-  v.  Partridge,  34  Beav.  411;    Bogart  v. 

ness,  98  Ind.  134;  §  317  a.  Van  Velsor,  4   Edw.   Ch.    718;    Wms. 

2  See  English  stat.  22  &  23  Vict.  c.  Exrs.  1808. 

35,  §  31,  cited  Wms.  Exrs.  1828,  which  ^  Wms.  Exrs.  1809. 

contirms  as  the  true  criterion  of  liability,  *  Brown  v.  Litton,   I    P.   Wms.    141. 

the  executor's   or   administrator's    own  Cf.  Norbury  z/.  N'orhury,  4  Madd.  191; 

"  wilful  default."     But  as  to  the  Ameri-  Wilson  v.  Staats,  33  N.  J.  Eq.  524. 
can  rule,  see  supra,  §  315. 

395 


§3^4  EXECUTORS    AND    ADMINISTRATORS.  [PART IV. 

are   highly  favored   for   trust    investments    of   a   permanent 
character.^ 

An  investment  of  personal  assets  in  real  estate,  being  tech- 
nically a  conversion,  is  not  proper  on  the  representative's 
part.  But  where  it  becomes  necessary  to  save  the  estate 
from  loss,  it  is  right  and  even  obligatory  for  the  executor  or 
administrator  to  purchase  or  take  possession  of  land  on  the 
foreclosure  of  a  mortgage  belonging  to  the  estate  and  hold 
the  title  for  the  benefit  of  the  estate.  In  such  case  the  land 
may  be  treated  as  personal  property ;  ^  and  if  taken  without 
breach  of  trust  by  the  representative,  the  land  may  be  turned 
over  in  lieu  of  the  fund  on  a  settlement  of  the  estate.^ 

§  324.  The  Subject  continued.  —  Where,  as  in  some  Ameri- 
can States,  no  particular  restrictions  are  imposed  by  law  upon 
the  fiduciary,  as  to  the  kinds  of  securities  in  which  the  trust 
funds  shall  be  placed,  or  the  mode  of  making  investments ; 
the  general  rule  of  liability  still  applies  which  we  have  been 
discussing,  viz.  :  that  the  fiduciary  shall  act  with  honor  and 
shall  exercise  a  sound  and  reasonable  discretion,  like  men  of 
ordinary  prudence  in  conducting  such  affairs.*  Investment 
in  public  (if  not  real)  securities,  is  the  usual  English  require- 
ment as  to  trust  funds ;  ^  and  the  personal  representative 
should,  in  that  country,  invest  his  unemployed  money  in 
government  loans  of  the  description  authorized  by  the  court 
of  chancery.^     And  although  a  fair  and  reasonable  discretion 

^  See  Wms.  Exrs.  1810.     Stat.  22  &  others,  see  Part  V.,  legacies, />os/ ;  Sar- 

23  Vict.  c.  35,  §  32,  sanctions  trust  in-  gent  w.  Sargent,  103  Mass.  297;    Brown 

vestments  in  real  securities  in  any  part  v.   Gellatly,    L.   R.    2    Ch.   75 1;    Wms. 

of  the  United   Kingdom.     Wms.  Exrs.  Exrs.  1391,  and  Perkins's  note. 
181 1.  ^  That  is  to  say,  the  three  per  cent. 

2  Valentine  v.  Belden,  20  Hun,  537.  consols.     Holland  v.   Hughes,  16  Yes. 

8  Perrine  w.  Vreeland,  33  N.  J.  Eq.  1 14;    Wms.  Exrs.   1810,  1811.     Though 

102,  596;    Richardson  v.  McLemore,  60  for  a  purely  temporary  investment  other 

Miss.  315.     See  Part  VI.  descriptions    of   British    securities    are 

*  Kinmonthf.  Brigham,  5  Allen,  277,  sometimes    sanctioned.     6    Beav.    239. 

by  Hoar,  J.;  Harvard  College z/.  Amory,  And  see  stats.  22  &  23  Vict.  c.  35,  §  32; 

9  Pick.  446.  23  &  24  Vict.  c.  38,  §   12,  under  whose 

^  Howe  V.  Lord  Dartmouth,  7  Yes.  operation    the   choice  of  investment  is 

137  a.     For  the  modern  rule  as  to  in-  extended  to  a  choice  not  only  of  real 

vestment  of  a  fund  so  bequeathed  that  securities    in    any  part    of    the    United 

the  income  shall  be  paid  to  a  particular  Kingdom,    but    also    of  national   bank 

class  for  life,  and  then  the  principal  to  stock  and  East  India  stock. 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §    324 

as  to  investing  upon  private  personal  security  appears  in 
some  earlier  instances  to  have  been  approved,  the  present  rule 
of  the  English  courts  of  equity  clearly  establishes  that  an 
executor  who  lends  upon  the  bond,  promissory  note,  or  other 
personal  security  of  a  private  party,  commits  a  breach  of 
trust  and  shall  be  personally  answerable  for  the  fund.^ 

But  these  doctrines  have  not  been  adopted  in  Massachu- 
setts j^  nor  generally  in  the  United  States;  and  even  were 
our  national  public  securities  available  in  this  country,  as  they 
seldom  have  been  in  the  English  sense.  State  securities  of 
the  particular  jurisdiction  might  not  be  thought  much  less 
desirable.  The  subject  is,  to  a  large  extent,  controlled  in 
this  country  by  local  statutes  which  vary  considerably  in  the 
range  of  selection  permitted  to  the  fiduciary.  But  the  policy 
so  strongly  inculcated  in  British  jurisprudence,  of  using 
accumulated  wealth,  transmitted  from  the  dead  to  the  living, 
to  strengthen  the  hands  of  government,  by  causing  its  invest- 
ment in  the  national  soil  and  the  public  debt,  finds  less  favor 
in  America.  Here  individual  fortunes,  so  far  as  they  remain 
undispersed  and  are  left  to  accumulate,  aid  rather  in  stimu- 
lating private  enterprises,  near  and  remote,  and  in  reclaiming 
the  wilderness,  and  peopling  and  developing  new  States ; 
while  the  nation  itself  makes  no  general  directions  for  invest- 
ment and  cannot  interfere.^ 


^  Cf.  Webster   v.   Spencer,   3   B.  &  Miss.    704;    Manning  v.  Manning,   12 

Aid.   360,  with  Gil.   Eq.   10;    I    Eden,  Rich.  Eq.  410;    Leake  v.  Leake,  75  Va. 

149  «.  /  Walker  v.  Symonds,  3  Svvanst.  792.     But  in  some  States  such  invest- 

63;   Bacon  v.  Clark,  3  M.  &  Cr.  294;  ments  must  doubtless  have  been  utterly 

Wms.  Exrs.  1809.  illegal.     Copeland  v.  McCue,  5   W.  Va. 

^  Lovell  7'.  Minot,  20  Pick.  119.  264;   Sharpe  v.  Rockwood,  78  Va.  24. 

8  Concerning  investments  in  "  Con-  State  securities  have  not  in  all  instances 
federate  securities  "  during  the  Southern  been  a  judicious  investment  for  trust 
rebellion  of  1861,  various  recent  decis-  moneys.  Perry  v.  Smout,  23  Gratt. 
ions  are  found.  The  main  question  is  241.  See  17  Wall.  570. 
not  easily  separable  from  perplexing  Investments  made  by  an  executor 
issues  of  lawful  or  unlawful  govern-  voluntarily,  which  on  application  of  the 
ment;  but  in  general  the  valid  act  oi  z.  legatees  the  court  would  have  corn- 
State  legislature  authorizing  investments  pelled  him  to  make,  will  be  protected. 
to  be  made  in  specified  securities  should  Bodley  v.  McKenney,  9  Sm.  &  M.  339. 
shield  the  personal  representative  who,  When  personal  property  is  given  for  life 
in  good  faith  and  not  carelessly,  invests  generally,  and  the  trust  of  investing 
accordingly.     See  Trotter  v.  Trotter,  40  appears  to  have  been  confided  to  the 

397 


§325 


FA'ECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


§  325.  Liability  for  placing  or  leaving  Assets  in  Trade, 
Speculation,  etc. — An  administrator  is  not  justified  in  plac- 
ing or  leaving  assets  in  trade,  for  this  is  a  hazardous  use  to 
permit  of  trust  moneys  ;  besides  which,  trading  lies  outside 
the  proper  scope  of  administration  functions.  Under  cir- 
cumstances not  clearly  imprudent,  however,  an  executor 
may  pursue  an  authority  which  was  plainly  conferred  upon 
him  by  the  will  in  this  respect  ;  though  less  as  an  executor, 
perhaps,  than  as  one  specially  honored  or  burdened  by 
his  testator's  personal  confidence.  Chancery  protects  the 
executor  who  can  show  his  testator's  express  sanction,  but 
scarcely  beyond  this,  and  chiefly  so  as  to  keep  the  hazard- 
ous investment  under  its  prudent  direction.  To  employ 
trust  funds  in  trade  on  the  representative's  own  responsi- 
bility has  always  been  treated  as  essentially  a  breach  of 
trust ;  and  the  courts  have  resisted  much  pressure  to  relax 
the  rule.     And  the  executor  or  administrator  so  employing 


executor  rather  than  a  trustee,  an  in- 
vestment should  be  made  so  as  to  secure 
interest  or  income  to  the  life  legatee. 
Evans  v.  Inglehart,  6  Gill  &  J.  71;  lega- 
cies,/05^,-  Jones  V.  Stites,  19  N.  J.  Eq. 
324;  Chisholm  v.  Lee,  53  Ga.  611; 
Calkins  v.  Calkins,  I  Redf.  337.  And 
see,  as  to  perishable  property,  Woods  v. 
.Sullivan,  i  Swan,  507.  In  some  .States 
the  personal  representative  is  bound  to 
invest  moneys  left  in  his  hands,  after 
settling  his  accounts,  within  a  specified 
period,  usually  six  months.  Frey  v. 
Frey,  14  N.J.  L.  71.  Investments  left 
by  the  decedent  in  a  particular  kind  of 
security  might,  if  prudent,  be  fairly  re- 
invested in  the  same  or  a  similar  se- 
curity. Brown  v.  Campbell,  Hopk.  233; 
Hogan  V.  DePeyster,  20  Barb.  100. 

Trust  investments  in  corporate  or 
individual  bonds  and  notes  are  quite 
generally  sanctioned  in  the  several 
States;  but  the  classes  of  permissible  se- 
curities are  often  clearly  specified  by 
statute  ;  and  investment  in  the  unsecured 
bond  or  note  of  an  individual   is   not 


usually  allowable  as  prudent.  Lacy  v. 
Stamper,  27  Gratt.  42.  Municipal  bonds 
and  bank  stock  cannot  in  some  States 
be  taken  without  the  court's  permission. 
Tucker  v.  Tucker,  33  N.  J.  Eq.  235. 
See,  further,  2  Redf.  (N.  Y.)  333,  349, 
421,465;  35  N.  J.  Eq.  134,  467.  As 
to  loans  on  personal  security,  see  §  329. 
Lefever  v.  Hasbrouck,  2  Dem.  567. 
Money  of  the  estate  cannot  be  used  by 
the  representative  to  protect  stock 
which  he  had  no  right  to  purchase,  nor 
in  subscribing  for  additional  stock 
under  a  privilege.  Lacey  v.  Davis,  4 
Redf  402.  Prudence  seems  to  require 
that  depreciated  currency  should  be 
used  in  paying  debts  owed,  as  well  as 
in  receiving  payment  of  debts  due  the 
estate.  It  may  be  deposited,  but  should 
not  be  hoarded.  Rogers  v.  Tullos,  51 
Miss.  685. 

In  Missouri,  an  executor  or  adminis- 
trator who  lends  or  invests  funds  of  the 
estate  without  an  order  from  the  pro- 
bate court,  does  so  at  his  own  risk. 
Garesche  v.  Priest,  78  Mo.  126. 


398 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   3^5 

funds  of  the  estate  has  the  disadvanta|]je  of  incurring  all 
the  risks  while  he  must  account  for  all  the  profits.^ 

For  the  loss  of  assets  placed  or  left  by  him  in  trade,  the 
representative  may,  therefore,  be  charged,  as  for  his  impru- 
dence.^ And  if  he  carries  on  the  business  with  surviving 
partners  of  the  deceased,  he  may  incur  an  individual  liability 
for  the  partnership  debts.^  But  if  the  trade  prove  advan- 
tageous, the  parties  interested  in  the  estate  are  not  de- 
barred from  claiming  the  profits  of  the  investment  as  theirs.* 
Debts  incurred  by  the  representative  in  the  prosecution 
of  the  unauthorized  trade  with  personalty  cannot  be  charged 
against  the  general  assets,  real  and  personal,  notwithstand- 
ing an  honest  intention  on  the  fiduciary's  part  to  benefit 
the  family  of  the  decedent  by  carrying  it  on.^ 

But  as  to  withdrawing  assets  from  a  partnership,  or  clos- 
ing out  a  business  in  which  the  decedent  was  engaged,  a 
wider  discretion  must  occasionally  be  conceded  to  the  per- 
sonal representative  ;  for  this  duty  must  be  performed  with 
a  prudent  regard  to  time,  opportunity,  and  other  circum- 
stances. An  administrator  is  not  necessarily  wanting  in 
due  care,  so  as  to  be  responsible  personally,  if  he  suffer 
the  surviving  partner  to  remain  in  possession  of,  and  sell 
out,  the  joint  stock  in  the  usual  course  of  trade  ;^  and  to 
thus  sell  out  a  decedent's  stock  in  trade  may  be  for  the 
highest  interests  of  the  estate,  provided  due  care  be  exer- 
cised in   the  choice   of   agents.     And  where  it  appears,   on 

^  Wms.  Exrs.  1792,  1793;   Barker  v.  capital,  and  taking  no  undue  advantage 

Barker,  i  T.  R.  295;  Garland,  £x  parte,  out  of  the  assets,  see  Simpson  v.  Chap- 

10  Ves.  129;   Perry  Trusts,  §  429;  Bur-  man,  4  De  G.  M.  &  G.   154.     Where  a 

well  V.  Mandeville,  2  How.  560;   Pitkin  surviving  partner  is  also  executor  of  the 

V.  Pitkin,  7  Conn.  307;    Thompson  v.  estate  of  his  deceased  co-partner,  and 

Brown,    4   Johns.    Ch.    619;    Lucht  v.  he  collects  partnership  assets  which  are 

Behrens,  28  Ohio  St.  231 ;  Stedman  v.  not  needed  to  pay  partnership  debts,  he 

Fiedler,  20  N.  Y.  437.  will  be  presumed  to  hold  such  assets  as 

2  Thompson   v.  Brown,  4   Johns.   Ch.  executor.     Caskie  v.    Harrison,  76  Va. 

619,  and  other  cases,  supra.  85. 

'  Alsop    V.    Mather,    8    Conn.    584;  <  Robinett's -A.ppeal,  36  Penn.  St.  174. 

Muntz   V.    Brown,    11    La.    Ann.  472;  *  Lucht  ?'.  Behrens,  23  Ohio  St.  231; 

Stedman  v.  Fiedler,  20  N.  V.  437.     As  Merritt  v.  Merrilt,  60  Mo.  150. 

to  permitting  a  representative  to  enter  *  Thompson  v.  Brown,  4   [ohns.  Ch. 

bond  fide  into  the  concern  to  which  the  619.     See   also    Merritt    v.   Merritt,  60 

decedent  belonged,  employing  his  own  Mo.  150. 

399 


§  326  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

finally  closing  the  partnership  affairs,  that  the  firm  is  insol- 
vent, the  fact  that  it  must  also  have  been  insolvent  at  the 
decedent's  death,  and  that  the  estate  has  actually  profited 
by  the  representative's  delay  in  withdrawing  the  decedent's 
interest  from  the  firm,  may  exonerate  the  representative.^ 

These  principles  apply  to  speculative  investments  of  all 
kinds,  with  the  assets.  The  personal  representative  incurs 
all  the  risks  and  is  entitled  to  none  of  the  profits  resulting 
from  such  transactions  committed  in  breach  of  trust.  But 
if  assets  came  to  him  thus  invested  by  the  decedent,  it  is 
a  question  of  prudence  when  and  how  he  shall  withdraw 
the  fund  ;  and  though  he  is  not  justified  in  continuing  the 
speculation,  and  involving  the  estate  more  deeply,  a  reason- 
able latitude  of  honest  discretion  should  be  allowed  him, 
as  to  closing  the  transaction.^ 

§  325  (^.  Closing  out  Decedent's  Business,  etc.  —  Good  dis- 
cretion may  require  some  latitude  in  closing  out  a  decedent's 
business.  Thus,  in  the  case  of  a  school  teacher  who  died 
during  the  school  year,  and  left  contracts  outstanding  with 
teachers  and  others,  having  also  received  some  of  the  tuition 
fees  in  advance,  an  executor  who  in  good  faith  carried  out  the 
existing  arrangements  for  some  months,  and  then  sold  out 
the  good-will  for  a  fair  sum,  had  his  accounts  approved  and 
ratified  by  the  court.^ 

§    326.    Carrying    on   a  Trade   with   Assets;    Liability,  etc. — 

The  liability  of  a  deceased  copartner,  as  well  as  his  inter- 
est in  the  profits  of  the  concern,  may,  by  the  copartnership 
contract,  be  continued  beyond  his  death.  Without  such 
stipulation,  however,  death  would  dissolve  the  firm,  even 
where  the  copartnership  was  expressed  to  be  for  a  term  of 
years.*      With    such    a   contract   the   effect    must    be    natu- 

1  Stern's  Appeal,  95   Penn.   St.   504.  -  See  Perry  Trusts,  §  454;   Tompkins 

Here  it  was  shown  that  none  of  the  in-  v.  Tompkins,  18  S.  C.  i. 

dividual  assets  of  the  estate  had  been  ^  Oilman  v.  Wilber,  i  Dem.  547. 

adventured  or  lost  in  the  business.    And  *  Scholefield  v.   Eichelberger,   7    Pet. 

see  next  chapter  as  to  selling  out  the  594, /if/"  Mr.  Justice  Johnson, 
interest  in  a  firm. 

400 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  ^   336 

rally  to  bind  the  estate  of  the  deceased  partner,  in  the 
hands  of  his  executors  or  administrators,  without  compelling 
such  representatives  to  become  partners  personally.^ 

The  active  assent  and  participation  of  the  representa- 
tives in  the  business  appears,  however,  to  subject  them  to 
the  usual  individual  responsibilities  of  representatives  who 
make  contracts  after  the  decedent's  death  with  reference 
to  the  estate  ;  the  immediate  effect  being,  like  that  of  carry- 
ing on  a  trade,  that  they  have  a  lien  on  assets  for  their 
indemnity  if  they  had  power  to  embark  the  estate  in  trade, 
but  otherwise  no  lien.^  Where,  therefore,  the  business 
of  the  decedent  is  carried  on  by  executors  under  a  will, 
or  in  any  case,  by  representatives  duly  empowered,'^  and 
the  case  is  not  merely  one  of  leaving  passively  the  dece- 
dent's partnership  interest  in  a  concern,  unadjusted  with 
the  survivor,  the  representatives  incur  a  personal  liability 
for  the  debts  thereby  contracted.  They  are  not  absolved 
from  accounting  for  the  property.  But  they  have  a  right 
in  equity  to  indemnify  themselves  for  the  payment  of  such 
debts  out  of  the  property  lawfully  embarked  in  the  trade.* 
Out  of  this  right  springs  an  equitable  right  of  the  trade 
creditors  to  resort  to  such  fund  for  payment,  if  their  remedy 
against  the  representative  be  unavailing.^  And  where  a  new 
firm  is  rightfully  created,  into  which  the  personal  representa- 
tives of  the  old  firm  enter,  the  creditors  of  the  new  firm  are 
clothed  with  the  equities  of  that  firm  against  the  estate  of 
the  decedent  arising  out  of  the  payment  by  the  new  firm  of 
the  debts  of  the  old.^ 

Where,  on  the  contrary,  the  executor  or  administrator 
carries  on  a  trade  without  any  authority  to  do  so,  and  the 
business  proves  disastrous,  this  will  not  of  right  involve  the 

1  Downs  V.  Collins,  6  Hare,  418.  *  Laible  v.  Ferry,  32  N.  J.  Eq.  791; 

2  Laughlin  v.  Lorenz,  48  Penn.  St.  Labouchere  v,  Tupper,  1 1  Moore,  P.  C. 
275;    Lucht   V.    Behrens,    23  Ohio   St.     198. 

231;   Gratz  V.  Bayard,  11  S.  &  R.  41.  ^  lb.     The    fee  simple    of  land  may 

*  As  in  Laughlin  v.  Lorenz,  48  Penn.  thus  become  involved.     Laible  v.  Ferry, 

St.  275,  where  a  new  firm  composed  of  supra. 

the  personal  representatives  of  the  de-  ^  Laughlin  v.    Lorenz,  48  Penn.  St. 

cedent    and  the  surviving  partner  was  275. 
created. 

401 


§  326  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

decedent's  estate  for  the  debts  ;  but  such  assets  as  may  be 
shown  to  have  been  wasted  in  the  trade,  those  interested 
in  the  estate  have  the  right  to  claim.  The  difficulties  are 
practical  ones,  arising  out  of  the  representative's  own  in- 
solvency, and  the  difficulty  of  tracing  assets  into  the  busi- 
ness.^ Acts  of  the  representative  ultra  vires,  moreover, 
or  in  excess  of  his  express  power  to  trade,  do  not  give  those 
dealing  with  him  an  equity  against  the  trade  assets,  as  the 
latest  authorities  indicate.^  A  will  may  direct  one's  execu- 
tors to  carry  on  trade  after  his  death,  either  with  his  general 
assets  or  by  designating  a  specific  fund  to  be  severed  from 
the  general  bulk  of  his  estate  for  that  purpose  ;  the  latter  in- 
tention is  to  be  preferred,  as  hazarding  only  a  portion  of  the 
assets ;  and  in  no  case  is  the  creation  of  a  trade,  and  more  es- 
pecially of  a  partnership  liability,  to  be  inferred  without  clear 
provisions  of  the  will,  and  unambiguous  acts  by  the  represen- 
tative in  pursuance  of  the  powers  conferred  upon  him.^ 

While  a  testator  may  specifically  limit  the  specific  part  of 
the  assets  which  shall  be  used  by  the  representative  in  carry- 
ing on  his  trade,  it  would  appear  from  the  principles  an- 
nounced above,  that  the  representative  himself  necessarily 
risks  his  whole  fortune  if  he  actively  embarks  in  it.* 

^  See   Garland,    Ex   parte,    lo   Yes.  when    the    body  of  the    estate  fails  to 

no;   Wms.  Exrs.  1793.    And  see  Lucht  yield  a  sufficient  income,  after  making 

V.  Behrens,  23  Ohio  St.  231.  all    current    deductions,    the     business 

2  Pillgrem  v.  Pillgrem,  45  L.  T.  183.  shall  be  discontinued.     lb.     Only  that 

3  Stanwood  v.  Owen,  14  Gray,  195;  part  of  the  property  which  the  testator 
104  Mass.  583;  Wms.  Exrs.  1793;  had  used  in  his  business  is /rz'wa  y^r?V 
Kirkman  w.  Booth,  1 1  Beav.  273;  Jones  to  be  risked  therein.  Wilson  v.  Fri- 
V.  Walker,  103  U.  S.  Supr.  444.  A  denburg,  21  Fla.  386.  A  residue  to  be 
will  authorized  the  executors  to  continue  continued  in  business  will  not  be  pre- 
the  testator's  brewery  business  as  long  sumed  to  mean  a  residue  before  debts 
as  they  should  think  best.  It  was  held  and  testamentary  expenses  are  paid, 
that  the  expenses  of  the  business,  losses  5  Dem.  516. 

from  bad  debts,  expenditures  for  ordi-  *  Garland,    Ex  parte,  10  Yes.    IIO; 

nary  repairs  on  the  real  estate  used  in  Cutbushw.  Cutbush,  i  Beav.  184;  Wms. 

the  business,  and  the  cost  of  necessary  Exrs.   1793;    Laible  v.  Ferry,  32  N.  J. 

personal   property   were    chargeable    to  Eq.  791. 

the  income,  and  this,  although  the  will  An  executor  may  carry  on  a  trade  as 
made  no  mention  of  specific  items,  executor,  but  he  is  not  the  less  person- 
Jones,  Re,  103  N.  Y.  621.  Where  ex-  ally  liable  for  all  the  debts  which  he 
ecutors  are  empowered  to  carry  on  a  may  contract  in  the  trade.  Per  Turner, 
business  as  long  as  it  shall  prove  ad-  Lord  Justice,  in  Leeds  Banking  Co.,  Re, 
vantageous,   the   idea  is   favored    that  L.  R.  i  Ch.  231,  242. 

402 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §  328 

§  327.  Sale,  Investment,  etc.,  of  Perishable  Assets.  —  Perish- 
able assets,  and  such  as  naturally  depreciate  on  his  hands, 
the  representative  should  seasonably  dispose  of,  depositing 
moreover,  or  investing  the  proceeds,  or  appropriating  them 
in  some  other  suitable  mode.  It  often  happens  that  a  per- 
son beneficially  interested  will  take  such  assets  at  their  just 
valuation.^ 

§  328.  Rule  as  to  calling  in  Money  already  out  on  Loan  or  In- 
vestment.—  Where  general  law,  or  the  testator's  will,  sanc- 
tions only  investments  of  a  particular  description,  the  execu- 
tor or  administrator  cannot  safely  disregard  its  implication, 
that  funds  otherwise  invested  shall  be  promptly  called  in. 
In  pursuing  such  a  duty  he  should  observe  prudence  and 
good  faith,  as  in  other  instances  ;  but  negligence  in  point  of 
time  as  to  stocks  and  securities  of  speculating  and  fluctu- 
ating value  is  culpable,  especially  if  payments  to  be  made 
on  behalf  of  the  estate  made  the  necessity  urgent  for  real- 
izing in  cash  promptly.  Unless  it  appears  highly  probable 
that  by  delay  a  better  price  will  be  realized,  the  safer  course 
for  the  fiduciary  is  to  sell  disfavored  assets  at  an  early  stage 
of  his  administration,  unless  all  the  parties  in  interest  or 
the  court  of  probate  or  chancery  expressly  sanction  delay.^ 

Nevertheless,  reasonable  diligence  and  good  faith  are  re- 
garded in  determining  the  representative's  liability  in  such 
cases.  That  the  delay  resulted  on  the  whole  advantageously 
for  the  estate  may  perhaps  be  sufficient  exoneration.  Nor 
can  it  be  said  that  there  is  any  fixed  period  at  which  loss  by 
depreciation  becomes  chargeable  absolutely  to  the  represen- 
tative himself ;  for  it  depends  on  the  particular  nature  of 
the  property,  and  the  particular  circumstances.^  In  England, 
where  the  range  of  trust  investments  is  seen  to  be  quite  lim- 

^  Woods   V.    Sullivan,   i    Swan,  507;  tive,  observes    Lord  Cottenham,  is   not 

Morton  v.  Smith,  l  Desau.  128.  liable  upon  a  proper  investment  in  an 

2  Powell  V.  Evans,  5  Ves.  839;    Peate  authorized   fund   for  the  fluctuations  of 

V.   Crane,    3    Dick.    499;     Bullock    v.  that  fund,  but  he  is  for  the  fluctuations 

Wheatley,  l  Coll.  130;    Brazen  z*.  Clark,  of   any  unauthorized   fund.     Clough  v. 

5  Pick.  96;  Boyd  v.  Boyd,  3  Gratt.  113;  Bond,  3  My.  &  Cr.  496. 
Wnis.  Exrs.  1806,  181 5;  Moylet'.  Movie,  ^  Buxton  v.  Buxton,  i  M.  &  Cr.  80; 

2  Russ.  &  My.   710.     The  reprcsenta-  McRae  z/.  McRae,  3  Bradf.  Sur.  199. 


§   3^9  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

ited,  a  different  application  of  the  rule  may  be  expected  than 
in  many  parts  of  the  United  States.  But  consistently  even 
with  the  English  rule,  leasehold  property,  or  money  invested 
upon  good  real  estate  mortgage  security,  need  not  be  con- 
verted into  three  per  cent,  consols.  Nor,  in  general,  is  it 
the  duty  of  an  executor  or  administrator  to  call  in  assets 
well  and  productively  invested,  where  no  undue  risk  is  ap- 
parent, and  the  cash  assets,  together  with  collections,  the 
proceeds  of  less  desirable  investments,  will  sufifice  for  all  the 
immediate  purposes  of  administration.^  It  is  the  less  secure 
investments  and  debts  which  demand  one's  keener  vigilance. 

§  329.    Rule  as  to  making  Unauthorized  Loans  or  Investments. 

—  According  to  the  strict  rule  of  common  law,  if  an  executor 
or  administrator  lent  assets  without  authority,  this  was  a  con- 
version for  which  he  became  personally  liable.'-^  This  is  per- 
haps too  harsh  a  statement  to  suit  the  modern  practice,  for 
by  the  probate  and  equity  precedents  it  is  enough  if  he  act 
with  honesty  and  due  discretion  as  concerns  what  may  be 
called  authorized  classes  of  loans.  But  where  one  loans  or 
invests  money  belonging  to  the  estate  in  a  mode  adverse  to 
the  directions  of  the  law,  even  though  honestly  intending  to 
benefit  the  estate,  he  becomes  personally  liable  for  loss 
should  the  security  prove  defective.^  He  is  certainly  liable 
if  he  mixes  the  trust  fund  with  his  own  property  in  such  a 
way  that  its  trust  identity  is  lost ;  *  or  if  he  appropriates  the 
assets  to  his  own  use,  or,  as  one  might  say,  loans  it  to  him- 
self, or  invests  it  in  his  own  property,  or  deposits  it  as  his 

1  Wms.  Exrs.  1817;  7  Ves.  150;  not  permitted.  Moore  v.  Hamilton,  4 
Robinson  v.  Robinson,  i  De  G.  M.  &  Fla.  112;  27  Gratt.  42;  20  La.  Ann. 
G.  247.  As  to  calling  in  "confederate  148;  Probate  Judge  v.  Mathes,  60  N. 
securities"  in  the  Southern  States,  see  H.  433.  But  of.  18  S.  C.  544.  And 
Tompkins  z'.  Tompkins,  18  S.  C.  i.  In  so  in  England.  Wms.  Exrs.  1809; 
New  Jersey  the  statute  protects  a  repre-  Bacon  v.  Clark,  3  M.  &  Cr.  294.  Or 
sentative  who  in  good  faith  does  not  where  one  loans  on  a  second-class  mort- 
disturb  the  decedent's  investment  in  gage,  and  beyond  two-thirds  of  the 
bank  stock,  though  the  bank  should  value  of  the  mortgaged  premises.  Bo- 
fail.     42  N.  J.  Eq.  559.  gart  v.  Van  Velsor,  4    Edw.  Ch.  718; 

2  Tomkies  v.  Reynolds,  17  Ala.  109;  Wilson  v.  Staats,  33  N.  J.  Eq.  524. 
State  V.  Johnson,  7  Blackf.  529.  *  See    Kirkman  v.  Renham,  28  Ala. 

8  As,  e.g.,  in  States  where  loans  on  501;  Henderson  v.  Henderson,  58  Ala. 
the  personal  security  of  individuals  are     582;  317  a. 

404 


CHAP.  III.]  MANAGEMENT    OF   THE    ASSETS.  §  33O 

private  fund,^  for  this  would  involve  a  breach  of  faith.  Even 
where  he  invests  in  duly  authorized  securities,  carelessness 
or  bad  faith  evinced  in  the  conduct  of  the  transaction  will 
still  render  him  chargeable.^ 

§  330.  Representative's  Acts  are  for  Benefit  of  those  interested 
in  Estate ;  Good  Faith,  etc.,  required.  —  Good  faith,  a.s  in  bail- 
ments and  trusts,  continues  an  element  throughout,  in  the 
personal  representative's  dealings  with  the  assets.  All  the 
acts  of  an  executor  or  administrator  are  by  intendment  for 
the  benefit  of  the  estate ;  and  he  shall  make  no  personal  gain 
or  loss,  except  as  the  compensation  allowable  on  his  accounts, 
for  the  reward  of  diligence,  fidelity,  and  good  management, 
may  be  thereby  affected.^  Nor  will  he  be  allowed  to  speculate 
with  the  funds  for  his  own  profit  or  at  the  risk  of  the  estate.* 
Nor  to  acquire  interests  in  or  bargain  for  benefits  from  the 
property  he  controls  ;  nor  in  general  to  take  for  his  own 
benefit  a  position  in  which  his  interests  must  conflict  with  his 
duty.^  Nevertheless,  in  various  modern  instances,  a  purchase 
of  fiduciary  assets  and  interests,  by  the  representative,  is  up- 
held as  not  absolutely  illegal  and  void,  though  justifying  a 
close  scrutiny  into  the  bona  fides  of  the  transaction.^ 

Moreover,  the  fiduciary  character  of  the  executor  or  ad- 
ministrator extends  to  all  the  parties  interested  with  respect 
to  their  several  rights  and   priorities.     He  cannot  defraud 

^  Ackerman  v.  Emott,  4  Barb.  626;  own  benefit,  he  was  held  to  be  a  trus- 

Commonwealth  v.  McAlister,  28  Penn.  tee   for   the    benefit   of    the    testator's 

St.   480;    53    Ala.    169;    75    Va.    792;  estate.     Fosbrook  v.  Balguy,   i    My.  & 

Williams  v.  Williams,  55  Wis.  300.  K.  226.     If  an  executor    lends   money 

■^  Cason  V.  Cason,  31  Miss.  578.  of  the  estate  in  his  individual  capacity, 
As  if  a  real  estate  mortgage  invest-  and  takes  a  bond  and  mortgage  pay- 
ment should  be  made  without  having  able  to  himself  individually  and  dies, 
reasonable  assurance  that  the  title  is  his  personal  representative  only  can 
good.  Bogart  v.  Van  Velsor,  4  Edvv.  enforce  the  securities.  Caulkins  v. 
Ch.  718.     See  §§  323,  324.  Bolton,  98  N.  Y.  51 1. 

«  See  post.  Part  VII.  c.  2,  as  to  ac-  ♦  Callaghan  v.  Hill,  i   S.  &  R.  241 ; 

counts;    Wms.   Exrs.    1842,    1967,   and  Kellar  v.  Beelor,  5  T.  B.  Mon.  573; /oj/, 

notes;    Cook   v.  Cullingbridge,    Jacob,  as  to  accounts. 
607;   Paff  V.  Kinney,  i  Bradf.  i.  *  Sheldon    v.  Rice,   30    Mich.    296; 

Where   the    executor    of   a    chattel  I.andis  v.  Saxton,    89   Mo.  375;    next 

mortgagee  bought  in  the   equity  of  re-  chapter, 
demptiun  in  his  own  name,  and  for  his  ^  §  358,  post. 

405 


§  332  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

creditors  for  the  sake  of  those  entitled  to  the  surplus ;  nor 
sacrifice  one  legatee  for  the  benefit  of  the  others. 

§  331.  Assets  should  be  kept  distinct  from  Representative's 
own  Property.  —  Courts  of  equity  require  executors  and  ad- 
ministrators to  preserve  the  property  of  the  deceased  distinct 
from  their  own,  in  order  that  it  may  be  known  and  readily 
traced  ;  and  if  they  do  this,  the  courts  will  protect  and  assist 
them  to  the  extent  of  their  power.^  Property  kept  thus  dis- 
tinct cannot  be  subjected  to  claims  upon  the  representative 
in  his  private  capacity.^  But  where,  on  the  other  hand,  the 
executor  or  administrator  commingles  funds  of  the  estate 
with  his  own,  so  that  the  separate  identity  of  the  trust  fund 
cannot  be  traced,  he  is  held  accountable,  at  the  option  of  the 
beneficiaries,  as  though  for  a  conversion,^  and  interest  is 
sometimes  compounded  on  the  fund  by  way  of  a  penalty  or 
in  lieu  of  the  estimated  profits.*  The  representative  should 
not  mingle  what  he  holds  in  different  capacities ;  such  for 
instance  as  executor  and  guardian.^ 

§  332.  Liability  qualified  when  Acts  are  performed  under  Ad- 
vice and  Assent  of  the  Parties  in  Interest.  —  We  may  presume 
that  the  personal  representative  can  never  be  strictly  justified 
in  deviating  from  the  line  of  bailment  or  fiduciary  duty.  But, 
in  case  of  doubt  as  to  his  proper  course,  he  may  protect 
himself  by  prudently  pursuing  in  advance  one  of  two  courses  : 
(i)  he  may  procure  the  advice  and  assent  of  all  the  parties 
in  interest ;  or  (2)  he  may  take  the  direction  of  the  court. 
On  the  first  point  it  is  laid  down  in  a  recent  case,  that  the 
personal  representative  who  in  a  particular  transaction  acts 
in  good  faith,  under  the  direction  of  all  the  parties  who  are 
interested  in  the  estate,  is  to  be  protected,  when  he  renders 
his  accounts,  from  a  claim  on  their  part  that  he  has  not  ad- 

1  Hagthorp  v.  Hook,  i  Gill  &  J.  270.     582.     But  see  Kirby  v.   State,  51   Md. 
And  see  Calvert  z/.  Marlow,  6  Ala.  337;     383;    51   Md.  352. 

Robinett's   Appeal,  36  Penn.   St.  174;         *  Gilbert's  Appeal,  78  Penn.  St.  266; 
Newton  v.  Poole,  12  Leigh,  112.  Nettles  v.  McCown,  5    S.  C.  43;   Mc- 

2  Branch    Bank   v.    Wade,    13  Ala.     Kenzie  v.  Anderson,  2  Woods,  357. 
427.  ^  Hedrick   v.  Tuckwiller,  20  W.  Va. 

'  Henderson  v.  Henderson,  58  Ala.    489. 

406 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   334 

ministered  strictly  according  to  law,  in  respect  to  such  trans- 
action. He  may  prosecute  or  defend  suits,  compromise 
claims  upon  the  estate,  or  deal  with  the  estate  in  a  particular 
way,  not  usual  or  strictly  legal,  as  by  continuing  the  property 
in  business  ;  and  those  parties  in  interest,  by  whose  request 
or  assent  it  has  been  done,  will  not  be  permitted  to  impute  it 
as  maladministration.^ 

§  333-  Liability  qualified  -wrhere  Acta  are  performed  under 
Direction  of  the  Court.  —  The  personal  representative  may 
take  the  direction  of  the  court.  Enabling  acts  of  this  charac- 
ter, to  be  found  in  our  codes,  permit  the  executor  or  admin- 
istrator to  consult  the  probate  or  county  court  in  many 
instances,  and  take  its  direction  after  an  inexpensive  and 
summary  course,  notwithstanding  he  might  have  acted  with- 
out its  direction.  Thus  he  may  ask  permission  to  make  a 
certain  sale  or  pledge  of  personal  property,  to  invest  after 
a  certain  manner,  to  change  an  investment,  to  compromise 
or  submit  to  arbitration  a  specified  claim,  or  to  perform  some 
contract  of  his  decedent.  But  in  most  if  not  all  of  such 
cases,  as  is  shown  elsewhere,  the  executor  or  administrator 
may  perform  without  an  order  of  court  upon  the  usual  risks 
of  a  fiduciary,  and  the  statute  is  not  imperative  in  requiring 
him  to  seek  judicial  direction  in  advance.^ 

Courts  of  probate  are  in  various  States  empowered  to 
authorize  the  money  belonging  to  an  estate  in  process  of 
settlement,  or  balances  or  special  funds  which  require  to  be 
set  aside  unusually  long,  to  be  deposited  in  certain  desig- 
nated banks  or  institutions  ;  or  to  be  temporarily  invested  in 
approved  securities.^ 

§  334.  Rule  -where  Control  is  taken  by  Court  out  of  Represen- 
tative's Hands.  —  In  this  latter  connection  we  may  add,  that 
where  the  control  of  assets  is  taken  out  of  the  power  of  the 

^  See  Colt,  J.,  in  Poole  v.  Munday,  78  Va.  1 11.    And  see  post.  Part  VII.,  as 

103  Mass.  174,  where  property  was  thus  to  accounting;     13  Phila.  195. 
continued    in     business.      In     Perry    v.         -  Smith  v.   Wilmington  Coal  Co.,  83 

Wooten,  5  Humph.  524,  indulgence  of  111.  498;    Richardson  z/.  Knight,  69  Me. 

a  debtor  was  sanctioned  by  the  parties  285.      But    see    contra,    Garesche    v, 

interested.     So,  too,  Watkins  v.  Stewart,  Priest,  78  Mo.   126. 

8  Mass.  Pub.  Stats,  c.  156,  §  32. 

407 


§   335  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

personal  representative,  by  the  act  of  the  law,  orders  of  the 
court  of  probate  or  chancery,  or  other  paramount  authority,  his 
strict  fiduciary  relation  towards  it  so  far  ceases,  together  with 
his  personal  liability  for  its  care  and  management.^  The 
English  chancery  court,  after  a  decree  to  account,  does  not 
permit  an  executor  or  administrator  to  invest  without  its  leave 
and  under  its  order.^  And,  in  some  of  the  United  States, 
similar  safeguards  are  to  be  found  for  various  instances  ;  the 
probate  court  making  orders  as  to  loans  and  investments,  to 
the  intent  that  no  exercise  of  his  own  private  judgment  shall 
relieve  the  representative  from  individual  liability.^  Even 
while  pursuing  the  orders  of  a  court,  the  representative  may 
incur  a  personal  liability  if  he  disregard  the  judicial  direc- 
tions.* But  paying  over  the  funds  to  the  judge  of  probate, 
on  the  latter's  order,  the  personal  representative  becomes  dis- 
charged from  all  further  liability,  under  such  statutes.^ 

§  335-  Directions  of  a  Will  as  to  Investment,  etc.,  may  be 
reasonably  folio-wed  ;  Specific  Legacy,  etc.  —  Directions  of  the 
testator's  will  as  to  the  deposit  or  investment  of  particular 
funds  are  not  to  be  disregarded.^  Thus,  even  the  cautious 
rules  of  English  chancery  justify  an  executor  in  laying  out  a 
fund  in  real  or  personal  securities  at  discretion,  or  loaning  to 
private  individuals,  wherever  the  testator  so  directed,  pro- 
vided a  fair,  honest,  and  prudent  judgment  be  exercised  in 
doing  so.'  Oral  instructions  of  the  decedent,  however,  can- 
not justify  a  diversion  of  trust  funds. ^     And  even  as  to  wills, 

1  Hall's  Appeal,  40  Penn.  St.  409.  the    representative's   prudent   disregard 

2  Wms.  Exrs.  1809;    2  Meriv.  494.  of  such  requirements  will  be   leniently 

3  Bacon  v.  Howard,  20  Md.  191;  treated.  Morton  7'.  Smith,  i  Desau.  128. 
Lockhart  v.  Public  Administrator,  4  "  Even  though  the  judge's  order  be 
Bradf.  21;  Fowle  v.  Thompson,  5  Rich,  verbally  expressed.  Doogan  v.  Elliott, 
Eq.  491 ;   Doogan  v.  Elliott,  43  Iowa,  43  Iowa,  342. 

342.     The  general  powers  of  a  surrogate  ^  Wms.  Exrs.  1809;   Forbes  v.  Ross, 

embrace  the   power   to  disapprove  in-  2  Cox,  n6;    Gilbert  v.  Welsh,  75  Ind. 

vestments  made  by  an  executor.     Jones  557;   Smyth   v.   Burns,   25    Miss.  422; 

■9,    Hooper,    2    Dem.    14.       The   court  Hogan  v.   De  Peyster,   20  Barb.   100; 

should  not  make  any  order  which  con-  McCall  v.  Peachy,  3  Munf  288. 

flicts  with  the    lawful    directions   of  a  '^  Wms.  Exrs.  1809.     And  see  Nelson 

will.     Hindman  v.  State,  61  Md.  471.  v.  Hall,  5  Jones  Eq.  32;  Smyth  v.  Burns, 

*  .See  next  c.  as  to  sales  under  judicial  25  Miss.  422. 

direction  ;  McDonald,  Re,  4  Redf.  321.  ®  Malone  v.  Kelley,  54  Ala.  532. 
But  in  sudden  and  great  emergencies, 

408 


CHAP.  III.]  MANAGEMENT    OF   THE    ASSETS.  §  335 

the  doctrine  applies  not  without  restrictions.  For  not  only 
may  an  executor  incur  liability  by  persistently  carrying  out 
testamentary  directions  of  this  sort,  plainly  inapplicable  to 
existing  circumstances,  —  as  if  for  instance,  the  will  directed 
an  investment  in  the  stock  of  a  particular  corporation,  which 
had  since  become  embarrassed  ;*  but  it  is  fairly  established  at 
length  in  the  courts,  notwithstanding  some  hostile  criticism, 
that  a  testator's  directions  as  to  investment  apply  with  the 
truer  force  against  legatees,  their  interest  being  founded  in 
his  gift,  and  not  as  against  creditors,  whose  just  demands 
must  be  met  irrespective  of  a  testator's  intentions.'-^  And 
hence,  a  creditor  may  not  be  concluded  by  losses  incurred 
through  a  fiduciary's  loan  or  investment,  such  as  the  will 
sanctions,  but  not  the  rule  of  the  courts  and  legislature,  while 
a  legatee  would  be  concluded.^ 

A  will  may,  however,  control  the  direction  of  the  executor 
or  administrator  in  other  ways  ;  as  by  requiring  him  to  invest, 
where  otherwise  the  fund  might  have  been  left  idle  ;  or  to 
place  money  in  securities  to  which  he  would  otherwise  not 
have  been  confined.^  To  invest  less  securely  than  a  testator 
directs,  renders  the  representative  liable  personally.^ 

A  specific  legacy  should  usually  remain  invested  in  the 
specific  security  or  chose  set  apart  and  designated  for  that 
purpose  by  the  will.*^ 

1  If  the  testator's  directions  cannot  '  Doyle  v.  Blake,  supra;  McNair's 
be  followed  because  no  such  securities     Appeal,  4  Rawle,  148. 

as  he  directs  are  offered,  the  represen-  •*  Shepherd  v.  Mouls,  4  Hare,  503. 

tative  may  prudently  deposit  on  interest  ^  Nyce's  Estate,  5  \V.  &  S.  254;    Mc- 

in  a  savings  hank.     Lansing  v.  Lansing,  Kenzie  v.  Anderson,  2  Woods,  357.     If 

45    Barb.    182.       Reasonable   delay   in  a  will   directs   investments  to  be   in    a 

following  the  order  of  the  will  as  to  in-  suitable  manner  at  the  executor's  discre- 

vestment,  conversion,  etc.,  is  excused,  tion,  this  does    not   give   discretionary 

Stretch  v.  McCampbell,  i  Tenn.  Ch.  41.  power  to  invest  in  unsecured  notes.     5 

2  Wins.  Exrs.  1809,  1836;  Churchill  Dem.  269.  A  power  to  sell  does  not 
V.  Hobson,  I  P.  Wms.  242;  Doyle  v.  authorize  the  exchange  of  bank  stock 
Blake,  2  .Sch.  &  Lef.  239;  Lewin  Trusts,  into  bonds.  Columbus  Ins.  t'o.  ?'.  1 1  um- 
5th  P^ng.  ed.  222;  McNair's  Appeal,  4  phries,  64  Miss.  258;  39  N.  J.  Eq.  249. 
Rawle,  148.  Cf.  upon  this  distinction  •*  -See  this  rule  slated  with  its  limita- 
between  legatees  and  creditors,  i  Eden,  tions  in  Ward  v.  Kitchen,  30  N.  J.  Eq. 
148;  Sadler  v.  Ilobbs,  2  Bro.  C.  C.  31.  Also  the  construction  of  a  direc- 
117.  As  to  dispensing  with  leave  of  tion  to  invest  "  in  productive  funds  upon 
court,  see  88  Ind.  i.  good  securities,"  etc.     lb. 

Power  under  a  will  to  change  invest- 

409 


§  33^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  335^-    Lending  vrithout   Security   or   on  Poor   Security. — 

Lending-  to  an  individual  without  security  at  all  is  usually  con- 
demned in  trust  transactions.  Lending  also  on  poor  security, 
such  as  a  life  insurance  policy,  is  disapproved. ^  But  security 
might  be  taken  from  a  failing  debtor  in  good  faith  and  with 
reasonable  prudence,  which  was  the  best  he  had  to  offer, 
where  the  original  debt  was  due  to  the  decedent.^ 

§  33^-  Summary  of  Doctrine  as  to  Management  and  Invest- 
ment;  Deviations,  when  permitted. — The  general  manage- 
ment and  investment  of  the  assets  is  seen  to  be  affected  by 
statute,  judicial,  or  perhaps  testamentary  directions,  whose 
tendency  is  to  restrain  the  executor  or  administrator  to  a  par- 
ticular course  of  action.  Thus  the  general  bailment  doctrine 
of  prudent  discretion  and  good  faith  becomes  affected  by  re- 
quirements that  the  investment  shall  be  made  in  specified 
classes  of  securities,  or  that  the  moneys  collected  shall  be 
placed  with  certain  depositaries.  For  such  cases  the  rule  is 
fairly  stated  thus  by  Lord  Cottenham  :  "  Although  a  personal 
representative,  acting  strictly  within  the  line  of  his  duty,  and 
exercising  reasonable  care  and  diligence,  will  not  be  responsi- 
ble for  the  failure  or  depreciation  of  the  fund  in  which  any 
part  of  the  estate  may  be  invested,  or  for  the  insolvency  or 
misconduct  of  any  person  who  may  have  possessed  it ;  yet,  if 
that  line  of  duty  be  not  strictly  pursued,  and  any  part  of  the 
property  be  invested  by  such  personal  representative  in  funds 
or  upon  securities  not  authorized,  or  be  put  within  the  control 
of  persons  who  ought  not  to  be  intrusted  with  it,  and  a  loss 
be  thereby  eventually  sustained,  such  personal  representative 
will  be  hable  to  make  it  good,  however  unexpected  the  result, 
however  little  likely  to  arise  from  the  course  adopted,  and 

merits,  etc.,  may  control  other  clauses  Miller  v.  Proctor,  20  Ohio  St.  442.     In 

directing  a  particular  investment,  under  executing  the   trust,  there   must  be  no 

appropriate    circumstances.       See    Ste-  negligent  or   dishonest  performance   of 

phens    V.    Milnor,   24   N.   J.    Eq.    358;  the    directions    contained    in    the    will. 

Pleasant's   Appeal,   77   Penn.    St.   356.  Styles  z/.  Guy,  i   Mac.  &  G.  422;   Wms. 

Where  executors   are    directed    by   the  Exrs.    1806;  Bacon  v.  Clark,  3  My.  & 

will  to  loan,  etc.,  on  interest  for  a  stipu-  Cr.  294. 

lated  time,  they  may  presumably,  at  dis-  ^  39  N.  J.  Eq.  249;    19  Fla.  300. 

cretion,  loan  for  less  than  the  full  time,  ^  See  Torrence  v.  Davidson,  92  N.  C. 

and  re-loan  from  time  to  time,  or  change  437;   Dabney's  Appeal,  14  All.  158. 
the  security,  as  they  may  deem  prudent. 

410 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   338 

however  free  such  conduct  may  have  been  from  any  improper 
motive."  ^  This  is  a  princii)le  not  unfamiliar  to  the  hiw  of 
bailments,  which  holds  a  bailee  strictly  liable  who  deviates 
from  the  terms  of  his  bailment. - 

Yet  a  deviation  from  the  strict  terms  of  a  bailment  by 
reason  of  necessity  is  admitted  to  excuse  a  bailee,  —  perhaps 
because  every  rule  finds  its  exception  ;  and  as  Lord  Cotten- 
ham  further  observes,  necessity,  which  includes  the  regular 
course  of  business  in  administering  the  property,  will  in 
equity  exonerate  the  personal  representative.^ 

§  337.  Management,  Investment,  etc.,  by  Executor  or  Admin- 
istrator similar  to  that  by  Guardian,  Trustee,  etc.  —  The  princi- 
ples discussed  in  this  chapter  bear  a  close  analogy  to  those 
which  the  courts  apply  to  guardians  and  testamentary  trus- 
tees,* as  well  as  to  what  the  law  usually  denominates  bailees  ;^ 
with,  however,  essential  differences  in  the  character  of  the 
office  already  pointed  out. 

§  338.  Election  to  charge  Representative  or  to  accept  the  In- 
vestment. —  Where  the  executor,  or  administrator,  or  other 
fiduciary,  loans  the  trust  money  without  authority  of  law,  or 
makes  other  unauthorized  use  of  it,  the  rule  is  that  the  cestui 
que  trust,  or  beneficiary,  may  elect  either  to  charge  him  with 
the  fund  thus  used,  or,  instead,  to  accept  the  investment. *" 
When  the  executor  or  administrator  is  charged  with  and  ac- 
counts for  the  fund  so  used,  it  becomes  his  individual  prop- 
erty, and  he  acquires  the  full  rights  of  a  beneficial  owner.''' 
A  similar  right  of  election  avails,  where  the  fiduciary  was 
bound  to  invest  in  a  certain  manner,  and  did  not,  so  as  to 
charge  him  with  the  amount  which  might  have  been  realized 
had  the  specific  investment  been  properly  made.^ 

1  Clough  V.  Bond,  3  M.  &  Cr.  496.  «  Clough  v.  Bond,  5  My.  &  Cr.  496; 

2  See  .Schoul.  Bailm.  109,  135.  Waring  v.  Lewis,  53  Ala.  615. 

*  Clough     V.     Bond,    supra;    Wms.  '  Waring  z/.  Lewis,  53  Ala.  615. 
Exrs.  1820.     And  see  Morton  f.  Smith,  ^  Wms.     Exrs.     1815;     Shepherd    v. 
I  Desau.  128.  Mouls,  4  Hare,  503;   Darling  i'.  Hani- 

*  See  e.g..  Hill  Trustees,  368-384,  and  mer,  5  C.  E.  Green,  220.  But  aliter, 
Wharton's  notes;  Perry  Trusts,  §§  452-  it  appears,  if  no  fund  was  specified; 
464;    Schoul.  Dom.  Rel.  §§  352-354.  for  such  a  rule  becomes   impracticable. 

6  5«/ra,  §  315.  I    De   G.    M.   &   G.  247;    Wms.  Exrs. 

1815. 
411 


§  340  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


CHAPTER    IV. 

THE     representative's     POWER    TO     SELL,     TRANSFER,     AND 

PURCHASE. 

§    339.    Representative's   Po'wer  to  dispose  of  Assets.  —  For 

the  sake  of  an  efficient  administration  of  the  estate  which  he 
represents,  the  absolute  control  of  the  personal  property  of 
the  decedent,  for  purposes  of  his  trust,  is  vested  by  law  in 
the  executor  or  administrator,  and  he  has  the  legal  power  to 
dispose  of  any  and  all  of  such  property  at  discretion.  This 
rule,  as  we  have  seen,  prevails  where  no  statute  opposes  re- 
straints ;  and  while  it  is  the  representative's  duty  to  use  rea- 
sonable diligence  in  converting  assets  into  cash,  for  the 
general  purposes  of  his  trust,  the  law  permits  him,  within 
certain  limits,  to  exercise  a  reasonable  discretion  as  to  the 
time  when  he  shall  make  a  transfer  of  assets,  and  the  manner 
in  which  his  right  of  disposition  shall  be  exercised.^  Sound 
judgment  and  honesty  on  the  representative's  part  may  be 
presumed  by  the  buyer  in  such  a  case ;  and  provided  he  pur- 
chase bond  fide  for  a  fair  consideration,  and  without  fraudu- 
lent collusion,  his  title  to  personal  assets  of  the  decedent, 
derived  through  the  lawful  executor  or  administrator,  must 
prevail  against  the  world. ^ 

§  340.  Sale  or  Transfer  can  only  be  made  -while  the  Represen- 
tative holds  Office.  —  A  sale  or  transfer  made  by  an  executor 
or  administrator  while  in  office  is  not  rendered  the  less  valid 
as  respects  third  parties  by  the  later  revocation  of  his  author- 
ity, or  his  resignation  or  removal ;  and  as  for  its  justification 

1  Supra,  §  322;  Wms.  Exrs.  932;  with  an  executor  or  arlministrator  if 
Nugent  V.  Giffard,  I  Atk.  463  ;  Whale  liable  afterwards  to  be  called  to  account. 
V.  Booth,  4  T.  R.  625.  Whale  v.  Booth,  4  T.  R.  62$,  per  Lord 

2  The  principle  is,  that  the  executor  Mansfield.  And  see  Wms.  Exrs.  934, 
or  administrator  in  many  instances  must  935;  Scott  v.  Tyler,  2  Dick.  725; 
sell  in  order  to  perform  his  duty  in  pay-  Leitch  v.  Wells,  48  N.  Y.  585. 

ing  debts,  etc. ;   and  no  one  would  deal 

412 


CHAP.    IV.]       representative's    POWER    TO    SELL,    ETC.       §   342 

in  the  settlement  of  his  accounts,  the  cardinal  rule  of  good 
faith  and  due  prudence  still  applies.^  But  a  sale,  made  after 
the  title  which  devolved  upon  him  at  the  death  of  his  testa- 
tor or  intestate,  has  become  divested  by  his  removal  or  other- 
wise, cannot  be  good,  for  he  has  not  a  title  to  confer.^ 

§  341.  Whether  Assets  should  be  sold  at  Public  or  Private 
Sale.  —  The  general  rule  is  that  the  representative's  sale  of 
his  decedent's  personal  property  may  be  either  at  private  or 
public  sale,  provided  the  sale  be  reasonably  prudent  and 
honest.^  But  an  auction  or  public  sale  best  vindicates  the 
representative's  good  conduct,  where  the  amount  actually 
realized  falls  short  of  the  appraised  value,  and,  on  the  whole, 
is  the  safer ;  and  in  some  States,  indeed,  the  representative 
must,  unless  protected  by  judicial  directions,  sell  at  public 
sale,  or  no  title  will  pass  to  the  purchaser.*  Where  the  rep- 
resentative sells  fairly  at  public  sale,  he  is  only  responsible 
for  what  the  property  brought  ;  where  he  sells  at  private  sale, 
the  full  value  appears  the  test,  rather  than  the  price  obtained  ; 
but  in  either  case,  if  the  sale  be  fair  and  honest,  the  pur- 
chaser, according  to  the  usual  rule,  takes  a  good  title.^  The 
representative  may  appoint  an  agent  or  auctioneer  to  sell  for 
him.^ 

§  342.  Sale  of  Goods  bequeathed  for  Life  -with  Remainder 
over.  —  A  residue  of  goods  which  are  given  for  life  with  a 
remainder  over,  ought  to  be  sold  by  the  executor,  if  the  trust 
is  confided  to  him  ;  and  the  interest  or  money  on  the  invested 
proceeds  of  the  sale  should  be  paid  to  the  legatee  for  life,  the 
principal  being  kept  for  the  remainder  man.'^ 

1  Benson  v.  Rice,  2  Nott.  &  M.  577;  trator,  whenever  he  sells  on  credit,  to 
Price  V.  Nesliit,  i  Hill  (S.  C.)  Ch.  445.  take  security,  and  if  loss  results  from 
And  see  Soya  z*.  McCallister,  iSTex.  80.  his    failure    to  do  so,  he   must   bear  it. 

2  Whorton  v.  Moragne,  62  .\la.  20I.  Bowen  v.  Shay,  105  111.  132. 

^  Mead  v.     Byington,    10    Vt.     116;         *  Lothrop  z/.  Wightman,  41  I'enn.  St. 

Tyrrell  v.  Morris,  i  Dev.  &  B.  Eq.  559.  297,  302. 

*  Bogan  V.  Camp,  30  Ala.  276;   Mc-         ^  Lewis  v.  Reed,  11  Ind.  239;    Dick- 

.Arthur  v.  Currie,  32  .Ma.  75;    Gaines  v.  son,  Ke,  6  La.  Ann.  754. 
De   la   Croix,  6    Wall.    719;   Weyer  v.         '  Jones  t.  Simmons,  7  Ired  Eq.  178. 

Second  Nat.   Bank,  57  Ind.   198.     See  See  Sarle  v.  Court  of  Probate,  7  R.  I 

Butler   V.    Butler,   10   R.  I.    501.     The  270. 
Illinois    statute    requires   the   adminis- 

41.3 


§  345  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

S  343.  Povrer  of  Representative  to  dispose  of  Chattels  spe- 
cifically bequeathed. —  The  power  of  the  executor  to  transfer 
and  di.spose  of  a  chattel  specifically  bequeathed,  though  some- 
times questioned,  appears  on  the  whole  to  be  well  established, 
as  following  the  general  rule  of  personal  assets.^  But  cautious 
administration  appears  to  require,  in  order  to  clear  the  repre- 
sentative himself  and  a  purchaser  who  happens  to  be  aware 
of  such  bequest,  that  the  specific  legatee  should  concur  in 
the  transfer ;  ^  for,  undoubtedly,  the  executor's  assent  to  the 
legacy,  so  as  to  divest  his  title  in  favor  of  a  specific  legatee, 
is  readily  presumed  wherever  the  estate  is  ample  to  meet 
demands  upon  it ;  and  unless  the  general  personal  assets  fail, 
the  executor  commits  a  breach  of  duty  in  disposing  of  prop- 
erty bequeathed  specifically.'^ 

§  344.  Sales  of  Perishable  Assets,  etc.  —  Sales  of  personal 
property  of  a  decedent's  estate,  when  liable  to  waste,  or  when 
of  a  perishable  nature,  may  be  expressly  authorized  by  the 
court,  as  some  statutes  provide  ;  such  provisions,  however, 
having  a  fitter  relation  to  special  administrators,  collectors, 
and  the  like,  than  to  the  general  administrator  or  executor, 
whose  discretion  to  sell  for  the  preservation  and  benefit  of 
the  estate  cannot  be  doubted.* 

§   345-    Representative's   Sale   of  his  Decedent's  Business.  — 

An  executor  or  administrator  has  authority  to  dispose  of  the 
business  of  his  decedent,  including  the  stock  in  trade  and 
good  will ;  he  may  also  sell  out  the  stock  on  hand  separately, 
in  the  exercise  of  a  reasonable  discretion  ;  but  he  should  be 
heedful  how  he  incurs  personal  risks  by  undertaking,  without 
authority,  to  carry  on  the  trade  himself.^  So,  too,  the  repre- 
sentative of  a  deceased  partner  may  dispose  absolutely  of  his 

1  2  Vern.  444;  Ewer  v.  Corbet,  2  P.  queathed,  and  that  there  are  no  debts, 
Wms.  149;  Langley  v.  Lord  Oxford,  will  take  his  title  subject  to  the  bequest. 
Ambl.  17;   Wms.  Exrs.  934.  Garnett  7.'.  Macon,  6  Call.  308. 

2  Wms.  Exrs.  934,  and  note,  citing  2  *  Public  Administrator  v.  Burdell,  4 
Sugd.  Vendors,  56,  9th  ed.  Bradf.  252;    Redf.  (N.  Y.)  Surr.  Prnct. 

^  See  posi  as  to  legacies.     One  who     175;     Harris   v.    Parker,  41    Ala.  604. 
purchases     a     chattel    specifically   be-     And  see  supra,  §  327. 
queathed,  knowing  that  it  was  thus  be-         *  Supra,  §  325. 

414 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.   §  346 

decedent's  interest  in  the  assets  of  a  firm  to  the  surviving 
partner,  or  to  any  otiicr  person  under  the  same  qualifications  ; 
and  he  may  accept  cash  or  other  personal  proj^erty  in  pay- 
ment, if  the  bargain  be  a  fair  one.^  Circumstances  may  arise 
under  which  the  representative's  sale,  made  to  the  surviving 
partner  simply  in  order  to  transfer  to  him  the  legal  title  to 
be  used  for  settling  the  business,  may  prove  valueless  to  the 
estate ;  as  where  the  whole  firm  property  is  needed  to  satisfy 
the  firm  debts.^  And  one  must  take  care  that  he  does  not 
transcend  a  statute  which  forbids  private  sales  without  spe- 
cific authority.^ 

A  personal  representative  who  trades  actively  with  his 
decedent's  business  stock,  renders  himself  a  trader,  on  the 
one  hand,  to  those  with  whom  he  deals,  while,  on  the  other, 
he  continues  accountable  to  the  estate  for  the  value  of  the 
stock  thus  perverted,  and  its  profits.*  But  merely  to  sell  out 
the  stock  in  hand,  without  increasing  what  the  decedent  left, 
does  not  constitute  the  representative  a  trader ;  for  it  is  a 
question  of  intention  to  carry  on  the  trade,  which  must  be 
inferred  from  circumstances.^  Where  an  executor,  in  carry- 
ing on  a  trade  under  a  power  contained  in  the  will,  abuses  his 
authority,  by  taking  out  a  new  lease  of  the  premises  in  his 
own  name,  and  then  borrows  money  on  the  security  of  the 
lease,  the  equity  of  the  testator's  estate  to  the  renewed  lease 
will  take  precedence  of  the  lender's  equity  to  such  security.^ 

§  34^-  Sales  and  Transfers  of  Personal  Assets  under  Pro- 
bate Direction.  —  Local  legislation  in  the  United  States  aids, 
sometimes,  the  representative's  inherent  power  over  the 
personal    assets.       Thus,    a   Massachusetts    statute    provides 

1  Roy  V.  Vilas,  18  Wis.  169.  And  ^  Pillgrem  v.  Pillgrem,  45  L.  T.  183. 
see  as  to  carrying  on  a  partnership  For  the  equity  of  the  estate  attached  the 
trade,  supra,  §  326.  moment  the  new  lease  was  granted,  and 

2  Merritt  v.  Dickey,  38  Mich.  41.  the  lender's  equity  not  until  the    loan 
8 Tell  Furniture  Co.  t^.  Stiles,  60  Miss,     was    made;     and    of   two    parties    with 

849.  equal    equities,  qui  prior   est  tempore, 

*  See  supra,  §  326 ;  Wood's  Estate,  potior  est  jure.  Nor  can  it  in  such  a 
I  Ashm.  314;  Leeds  Banking  Co.,  Re,  case  he  said  that  the  lender  was  a  ]iur- 
L.  R.  I  Ch.  231 ;  Evans,  Re,  34  Ch.  D.  chaser  without  notice,  for  had  he  in- 
597-  c]uired  he  would   have  been  placed  on 

*  Wms.  Exrs.  1794.  his  guard. 

4»5 


b^  346 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


that  a  probate  court,  after  the  return  of  the  inventory,  may 
order  a  part  or  the  whole  of  the  personal  estate  of  the 
deceased  to  be  sold  by  public  auction  or  private  sale  as 
may  be  deemed  most  for  the  interest  of  all  concerned  ; 
application  for  such  an  order  may  be  made  by  the  repre- 
sentative or  by  any  person  interested  in  the  estate ;  and 
the  representative  shall  account  for  the  property  so  sold 
at  the  price  at  which  it  sells.^  This  act  does  not  restrain 
executors  and  administrators  in  their  general  authority  to 
alienate  the  personal  assets,  except,  perhaps,  in  affording 
interested  parties  an  opportunity  to  apply  for  an  order  direct- 
ing the  manner  of  sale;  but  its  main  object  appears  rather 
to  protect  the  representative,  where  delicate  management 
is  needful  for  settling  the  estate  properly.  So,  too,  the 
New  York  statute  provides  for  a  formal  sale,  public  or  pri- 
vate, of  personal  property  so  far  as  may  be  needful,  under 
judicial  direction,  if  the  executor  discovers  that  debts  and 
legacies  cannot  otherwise  be  paid  and  satisfied.^  Statutes 
of  a  similar  character  may  be  found  in  other  States  ;  ^  the 


1  Mass.    Pub.   Stats.    (1882)    c.    133, 

§3. 

2  2  N.  Y.  Rev.  Stats.  87,  §  25 ;  Red- 
field's  (N.  Y.)  Surrogate  Pract.  236. 

3  Gary's  Prob.  Pract.  §  334;  Wise. 
Stats.  §  3837;  .Gen.  Stat.  Minn.  c.  54, 
§  4.  See  also  Joslin  v.  Caughlin,  26 
Miss.  134.  In  some  States  a  sale  of 
stocks  cannot  be  made  without  license 
of  the  probate  court  unless  the  repre- 
sentative assumes  the  whole  inventory 
of  the  estate  at  its  appraised  value. 
French  v.  Currier,  47  N.  H.  88.  Or  it 
is  held  that  the  representative  must  not 
sell  without  order  of  court  for  less  than 
the  appraised  value  of  the  property. 
Munteith  v.  Rahn,  14  Wis.  210.  But 
in  general,  if  stock  belonging  to  the 
estate,  be  sold  in  good  faith  and  with 
ordinary  prudence,  the  representative  is 
justified,  even  though  he  sold  at  a  de- 
preciation, and  the  stock  afterwards  rose 
much  higher.  Green,  Re,  37  N.  J.  Eq. 
254- 

The  power  of  the  probate  court  to 

AI 


order  a  sale  of  personal  property  is  con- 
ferred by  a  statute,  and  quoad  hoc,  the 
probate  court  is  a  tribunal  of  special 
jurisdiction,  and  must  pursue  the  statute 
requisites.  Hail  v.  Chapman,  35  Ala. 
553.  Sale  cannot  be  ordered  at  the  in- 
stance of  a  personal  representative,  un- 
less the  title  which  devolved  upon  such 
representative  remains  in  him.  Whorton 
V.  Moragne,  62  Ala.  201.  As  to  the 
object  of  such  sale,  as  set  forth  by  peti- 
tion, see  Ikelheimer  v.  Chapman,  32 
Ala.  676. 

The  executor  or  administrator  need 
not  wait  for  a  judgment  to  be  had  against 
him  for  a  debt  justly  due,  in  order  to 
make  valid  the  title  of  a  purchaser  of 
property  sold  in  satisfaction  of  the  debt. 
Smith  V.  Pollard,  4  B.  Mon.  67. 

Peculiar  delays  attending  the  settle- 
ment of  the  estate  such  as  might  arise, 
for  instance,  where  the  rights  of  those 
claiming  to  be  legatees  or  distributees 
were  in  litigation,  might  justifv  the  pro- 
bate court  in  ordering  a  sale  of  personal 

6 


CHAP.  IV.]       representative's    POWER    TO    SELL,    ETC.       §   346 

general  right  of  the  representative  to  alienate  personal 
assets  not  being  essentially  altered  thereby. 

The  Massachusetts  statute  provides  further  that,  for  the 
purpose  of  closing  the  settlement  of  the  estate,  a  probate 
court  may,  upon  petition  of  the  executor  or  administrator, 
and  notice  to  the  interested  parties,  license  a  sale  and 
assignment  of  any  outstanding  debts  and  claims  which  can- 
not be  collected  witliout  inconvenient  delay  ;^  and  any  suit 
for  the  recovery  of  a  debt  or  claim  thus  sold  and  assigned 
shall  be  brought  in  the  name  of  the  purchaser,  and  the 
executor  or  administrator  shall  not  be  liable  for  costs.^ 

Personal  property  of  the  deceased,  notwithstanding  such 
statutes,  is  commonly  sold  by  executors  or  administrators, 
at  their  own  discretion,  without  any  order  of  court ;  and, 
if  the  representative  acts  in  good  faith  and  sound  discretion, 
the  interests  of  no  person  concerned  can  be  injuriously 
affected.^  The  subsequent  approval  of  the  court,  moreover, 
appears  practically  equivalent  to  a  previous  order.  The  ex- 
ecutor or  administrator,  however,  makes  a  sale  at  his  own 
risk,  where  such  an  order  is  not  previously  obtained  ;  and 
the  advantage  of  procuring  one  is  apparent,  where  it  is  prob- 
able that  the  property  cannot  be  sold  for  its  appraised  value 

property  on  the  representative's  appli-  sale  made  under  a  void  judicial  order, 

cation.     Crawford  v.  Blackburn,  19  Md.  and  dependent  on  a  judicial  order  for 

40.     As  to  notice  of  the  intended  sale,  its  validity,  is  absolutely  void.     Beene 

see  Halleck  v.  Moss,  17  Cal.  339;   But-  v.  Collenberger,  38  Ala.  647;    Michel, 

ler  V.  Butler,  lo  R.  I.  501.     As  to  post-  Succession  of,  20  La.  Ann.  233.     See 

ponement   of  the   sale,    see    Lamb    v.  further,  Libby  v.  Christy,  i  Redf.  (N.  Y.) 

Lamb,  Spears  (S.  C.)  Ch.  289.  465. 

The  purchaser  should    see    that    the  The  purchaser  at  the  representative's 

representative  makes  his  sale  according  sale  should  on  discovery  of  irreguLiri- 

to  the  statute  or  judicial  order.     Fam-  ties    elect    promptly  whether   to    repu- 

bro  V.  Gautt,  12  Ala.  305.     Mere  irreg-  diate   the    transaction   or  not,  and  act 

ularities  in  pursuing   an  order    of   sale  consistently  with  his  election.     Joslin  v. 

are  sometimes  cured  by  the  court's  con-  Caughlin,  30  Miss.  502. 

firmation  of  the  sale.     Jacob's  Appeal,  ^  Mass.   Pub.  Stats,  c.    133,  §  4.     A 

23  Penn.  St.  477.     Some  statute  formal-  similar    authority    is    exercised    by    the 

ities  may  be  merely  directory  and  not  probate    court    in     Louisiana    practice, 

imperative.       Martin  v.  McConnell,   29  Pool.  Succession  of,  14  La.  .\nn.  677. 

Ga.  204.     Where  the  sale  was  invalid  "  Mass.  Pub.  St.its   c.  1 33,  §  5. 

by  reason  of  irregul.nrity,  another  sale  '  Marth    v.  lleddlestone,  2    Bay  (S. 

may   be    made  without    getting   a   new  C.)    321;     Mead     z'.    Bvington,    lO  Vt. 

order   to  sell    from    the   probate   court.  116;   Sherman  ?'.  Willett,  42  \.  V.  146; 

Robbins  v.  Wolcott,  27  Conn.  234.     A  Smith  (Mass.)  Prob.  Pract.  110. 


§  347  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

and  the  administration  may  be  greatly  affected  by  the 
amount  realized  ;  for,  complying  with  the  terms  of  his  order, 
the  executor's  or  administrator's  responsibility  is  limited  to 
duly  accounting  for  the  proceeds  of  the  sale.^ 

The  purchaser  at  a  sale  ordered  by  the  probate  court  ac- 
quires a  good  title,  unless  chargeable  with  notice  that  the 
order  was  improperly  procured,  by  misrepresentation  to  the 
court  or  otherwise ;  consequently  the  transfer  of  his  own 
bond  fide  title  will  be  good.^ 

§  347-  Authority  to  sell  or  transfer  as  affected  by  Expres- 
sions in  the  Will.  —  An  executor's  authority  to  sell  and  trans- 
fer personal  property  may  be  confirmed  or  enlarged  by  a 
power  of  sale  clause  contained  in  his  testator's  will  ;3  such 
clauses  relating  usually,  however,  in  expression,  to  the 
testator's  real  estate  or  to  his  property  generally  ;  and  so, 
doubtless,  directions  contained  in  a  will  may  qualify  or 
restrain  the  executor's  general  power  to  transfer  the  assets.* 
Upon  a  testator's  general  direction  to  sell  and  di.stribute,  the 
executor  is  the  proper  person  to  sell,  unless  some  one  else  is 
pointed  out  by  the  will.^  Where  a  testator  shows  by  his  will 
that  he  intends  to  intrust  his  personal  representative  with 
the  power  of  disposal,  and  of  receiving  and  applying  the 
proceeds,  the  purchaser  or  the  transferee,  for  security,  is 
not  bound  to  see  to  the  application  of  the  money  raised.^ 
A  power  of  sale,  out  and  out,  and  having  an  object  beyond 
the  raising  of  a  particular  charge,  does  not,  however,  author- 
ize a  transfer  by  way  of  pledge  or  mortgage.'^  Powers 
under  a  will   should  be  construed   according  to  their  true 

1  Smith  Prob.  Pract.  no;   Redf.  (N.  v.  Hollins,  ii  Md.41;     Durham,  Estate 

Y.)  Surr.  Pract.  237;    Williams  v.  Ely,  of,  49  Cal.  491. 

13  Wis.  I;   Munteith  v.  Rahn,  14  Wis.  ''Evans    v.    Evans,    i    Desau.     515. 

210.  Whether  the  executor  may  not  sell  or 

^  Pulliam  V.  Byrd,  2  Strobh,  Eq.  134;  pledge  personal  assets  for  the  payment 

Knight    V.   Yarborough,   4   Rand.    566.  of  debts  notwithstanding   the   will   has 

The  sale   by  an    executor    or   adminis-  provided  a  particular  fund,  see  Tyrrell 

trator  under  a  judicial  order  carries  the  v.  Morris,  i  Dev.  &  B.  Eq.  559. 

legal  title,  and  will  be  presumed  to  have  ^  McCollum   v.    McCollum,    33   Ala. 

been  in  good  faith",  unless  the  contrary  711. 

is  shown.     Price  v.  Nesbit,   i    Hill  (S.  **  Stronghill  v.  Anstey,  I  De  G.  M.  & 

C.)  Ch.  445.  G.  635;   Green,  Re,  37  N.  J.  Eq.  254. 

3  Smyth  V.  Taylor,  21  111.  296;  Dugan  '  lb. 

418 


CHAP.   IV.]       representative's    POWER    TO    SELL,    ETC.       §   349 

intendment.  But,  wliile  English  equity  courts  aj^pcar  some- 
times to  have  created  artificial  distinctions  to  the  hazard 
of  the  transferee,  in  respect  of  the  application  of  proceeds, 
the  general  doctrine  favored  in  this  country  is,  that  a  pur- 
chaser or  transferee  who,  in  good  faith,  pays  or  advances 
to  the  person  authorized  by  the  will  to  transfer,  need  not 
look  to  the  application  of  the  proceeds  of  the  transaction 
by  that  person.^ 

§  348.  Consulting  Parties  in  Interest,  as  to  the  Time,  Manner, 
etc.,  of  Sale.  —  The  judgment  of  residuary  legatees  or  distribu- 
tees may  be  of  importance  in  aiding  the  representative's  dis- 
cretion as  to  the  time,  place,  and  manner  of  sale.  He  is  not 
bound  to  act  upon  the  judgment  of  one  or  all  of  such  parties ; 
but  to  ascertain  and  act  upon  the  wishes  of  the  majority  of 
beneficiaries  in  interest  may  often  be  convenient  where  the 
fiduciary's  own  responsibility  is  a  delicate  one.^ 

§  349.  Representative  may  pledge  or  mortgage  Assets  instead 
of  selling.  —  The  general  right  of  disposition  and  transfer 
involves  the  right  to  transfer  in  bailment  as  well  as  by  sale. 
If  an  executor  or  administrator  may  advance  funds  of  his  own 
to  pay  the  debts  of  the  estate,  so  might  it  be  judicious  to 
raise  money  for  discharging  the  immediate  demands  of  the 
administration  by  pledging  or  mortgaging  assets,  and  avert 
the  necessity  of  an  immediate  sale  of  chattels  at  a  sacrifice,  or 
to  anticipate  the  receipt  of  income  or  other  assets  likely  to  be 
realized  later.  In  fact,  the  great  weight  of  authority,  English 
and  American,  is  to  the  effect  that,  unless  positively  restrained 
by  statute  or  the  particular  will,  the  representative  of  the 
deceased  may  mortgage  or  pledge  the  assets,  or  part  of  them, 
as  well  as  alienate  ;  the  general  presumption  being  that  one 
does  so,  as  he  well  might,  in  the  course  of  a  prudent  admin- 
istration.^ 

^  Andrews     v.    Sparbawk,    13    Pick.  2  gge    Marsden  v.   Kent,    25    \V.    R. 

393;   Cadbury  v.   Duval,    10  Penn.  St.  522. 

265;    Gardner    v.    Gardner,    3    Mason,  ^  _c;(.ott  z/.  Tyler,  2  Dick.  712;    Wms. 

178,  2i(), per  Mr.  Justice  Story;  Strong-  Exrs.  934;    Hill  i'.  Simpson,  7  Yes.  152; 

hill  V.  Anstey,   i    De  G.   M.  &  G.  635  Vane  v.  Rigdon,  L.  R.  5  Ch.  663;    Mc- 

(Am.  ed.)  and  note  by  Perkins.  As  to  a  Leod  v.  Drummond,  17  Ves.  154;  Shaw 
court's  power,  see  88  Ind.  I. 

419 


§  350  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

8  350.  Bona  Fide  Purchaser,  Pledgee,  etc.,  not  bound  to  see 
to  Application  of  what  he  pays  or  advances.  —  As  a  general 
principle,  it  is  not  incumbent  on  either  a  purchaser  or  a 
transferee  upon  security,  to  see  that  the  money  he  pays  or 
advances  is  properly  applied,  although  he  knew  he  was  deal- 
ing with  an  executor  or  administrator ;  and  simply  because 
the  executor  or  administrator  may  be  presumed  to  exercise 
properly  his  large  discretion  to  dispose  of  personalty  belong- 
ing to  the  estate.^  Hence,  the  equities  of  a  bond  fide  trans- 
feree, without  due  notice  of  a  fraud  upon  the  estate,  are 
respected ;  though  this  does  not  by  intendment  enlarge  the 
legal  powers  of  the  representative,  or  give  a  colorable^  sanc- 
tion to  misconduct  on  his  part. 

Nor  with  reference  to  the  office  of  executor  or  administra- 
tor does  the  same  rule  of  caution  apply  as  in  the  case  of 
a  trustee  ;  the  latter  takes  property  rather  for  custody  and 
management  for  his  cestiiis  que  trust,  but  the  former  for 
administration  and  a  sort  of  dispersion  of  the  assets.  Hence, 
it  might  be  perilous  to  buy  trust  funds  or  loarr  money  on 
their  pledge,  where  notice  of  a  trust  accompanied  the  trans- 
action, while  a  sale  or  pledge  of  personal  assets  by  the 
representative  would  stand  because  he  is  presumed  to  have 
the  right  to  transfer.^ 

The  more  conservative  expression  of  some  cases,  however, 
is  that  the  legal  representative  can  dispose  of  the  personal 
assets  of  the  decedent  for  all  purposes  connected  with  the 
discharge  of  his  duties  under  the  will ;  and  that  even  where 
the  transfer  upon  security  is  made  for  other  purposes  of 
which  the  pledgee  or  mortgagee  has  no  notice  or  knowledge, 
but  takes  the  property  for  the  ostensible  purpose  in  good 
faith,  parting  with  his  own  accordingly,  the  transaction  will 

V.  Spencer,  100  Mass.  392;   Carter  v.  Ch.  150;   Scott  z/.  Taylor,  2  Dick.  725; 

Manufacturers'    Bank,    71     Me.    448;  McLeod  v.  Drummond,   17  Ves.   154; 

Smith  V.  Ayer,   loi   U.  S.   Supr.   320;  Shaw  v.  Spencer,  100  Mass.  392;  Jones 

Wood's   Appeal,   92    Penn.    St.    379;  v.  Clark,  25  Gratt.  642. 

Goodwin  v.  American  Bank,  48  Conn.  2  Duncan    v.  Jaudon,    15  Wall.    165; 

550.    But  see  Ford  v.  Russell,  i  Freem.  Shaw  v.  Spencer,  100  Mass.  382;    Bay- 

(Miss.)  Ch.  42.  ard  v.  Fanners'  Bank,  52  Peun.  St.  232; 

^  Supra,  §  347;    Hill  v.  Simpson,  7  Perry  Trusts,  §  225. 
Ves.  152;   Field  v.  Schiefifelin,  7  Johns. 

420 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.   §  352 

be  sustained  ; '  a  statement  which  certainly  is  not  too  strong. 
For  the  transferee  of  personal  property  from  an  executor  or 
administrator,  whether  by  way  of  purchase  or  security,  is  not 
bound  to  see  to  the  application  of  the  proceeds  received  from 
him,  but  may  assume  that  they  will  be  properly  applied.^ 

§  351-  Letters  Testamentary  or  of  Administration  are  Cre- 
dentials of  Authority  to  transfer,  etc.  —  Letters  of  administra- 
tion or  letters  testamentary  are  commonly  regarded  as 
sufficient  evidence  of  authority  to  transfer  stock  or  regis- 
tered bonds,  or  assign  and  collect  bank  deposits  and  other 
incorporeal  personalty ;  because  all  such  transfers,  assign- 
ments, or  collections  are  within  the  line  of  an  executor's  or 
administrator's  duty.^  Not  so  plainly,  however,  with  a  trus- 
tee's letters.* 

§  352-  Good  Faith  and  Caution  requisite  from  Purchaser,  Pledgee, 
etc.,  in  dealing  with  Personal  Representative.  —  As  to  sale  or 
transfer  upon  security,  however,  limitations  are  imposed,  not 
upon  the  legal  representative  alone,  whose  mismanagement 
of  his  trust  may  be  visited  upon  him  and  his  bondsmen  apart, 
but  likewise  upon  the  purchaser,  pledgee,  or  mortgagee,  who 
has  dealt  with  him,  and  whose  interest  consists  in  having  the 
transaction  upheld.  As  to  these  third  parties  the  law  exacts, 
on  their  part,  perfect  good  faith  in  the  transaction,  and  free- 
dom from  all  improper  collusion  for  perverting  the  assets. 
Wherever,  therefore,  the  purchaser,  pledgee,  mortgagee,  or 
other  transferee,  takes  assets  and  accepts  their  transfer,  for 
what  one  may  reasonably  suppose  is  outside  the  scope  of  the 
representative  authority,  he  is  bound  to  look  into  that  authority 
or  he  will  act  at  his  peril. ^  And  any  person  receiving  from  an 
executor  or  administrator  the  assets  of  his  testator  or  intes- 
tate, knowing  that  such  disposition  of  them  is  in  violation  of 
his  duty,  is  to  be  adjudged  as  conniving  with  such  represen- 
tative, and  is  responsible  for  the  property  thus  received, 
whether  he  be  one  kind  of  transferee  or  another ;  and  the 

1  Smith  V.  Ayer,  loi  U.  S.  Supr.  320,         *  Bayard  v.  Farmers'  Bank,  52  Penn. 
329,  per  Mr.  Justice  Field.  St.  232. 

■^  Smith  V.  Ayer,  loi  U.  S.  Supr.  320,         *  Duncan  v.  Jaudon,   and  other  cases, 
327.  supra. 

'  Smith  V.  Ayer,  loi  U.  S.  Supr.  327. 
421 


§  352 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


assets  may  be  followed  and  recovered  for  the  benefit  of  the 
estate.^  Notice  of  the  misapplication  involves  the  transferee 
as  a  participator  in  the  fraud ;  and  there  are  numerous 
authorities  to  support  the  doctrine  that  where  one  has  rea- 
sonable grounds  for  believing  that  the  executor  or  adminis- 
trator intends  to  misapply  such  assets  or  their  proceeds,  or  is 
in  the  very  transaction  converting  them  to  private  uses,  such 
party  can  take  no  advantage  from  the  transaction,  and  the 
title  he  has  acquired  cannot  be  upheld.^ 


1  Smith  V.  Ayer,  loi  U.  S.  Supr.  327. 

2  McLeod  V.  Drummond,  17  Ves. 
153;  Collinson  v.  Lister,  7  De  G.  M.  & 
G.  633;  Hutchins  v.  State  Bank,  12 
Met.  423;  Mr.  Justice  Field  in  Smith  z/. 
Ayer,  loi  U.  S.  Supr.  328;  Field  v. 
Schieffelin,  7  Johns.  Ch.  150, /^r  Chan- 
cellor Kent;  Miller  v.  Williamson,  5 
Md.  219;  Yerger  v.  Jones,  16  How. 
30;  Lowry  v.  Commercial  Bank,  Taney 
C.  C.  310;    Graff  w.  Castleman,  5  Rand. 

195- 

A  sale  or  pledge,  therefore,  of  assets, 
which  is  known  to  be  for  the  payment 
or  security  of  the  executor's  or  adminis- 
trator's own  private  debt  is  invalid;  for 
the  act  speaks  for  itself  to  the  pur- 
chaser or  pledgee  as  a  breach  of  duty. 
Carter  v.  Manufacturers'  Bank,  71  Me. 
448;  Scott  V.  Searles,  15  Miss.  498; 
Smartt  v.  Watterhouse,  6  Humph.  158; 
39  Hun,  394.  It  appears  to  have  been 
laid  down  in  some  of  the  earlier  cases 
that  the  executor's  sale  of  assets  in 
satisfaction  of  his  own  private  debt  is 
not  necessarily  invalid,  although  the 
purchaser  knew  that  the  goods  sold 
were  the  goods  of  the  testator.  Farr  v. 
Newman,  4  T.  R.  642.  But  even  in  the 
common-law  courts  the  qualifications 
asserted  were  such  as  almost  to  neutral- 
ize the  doctrine.  See  Wms.  Exrs.  937. 
In  equity,  however,  it  has  since  become 
clearly  established  that  to  make  sale  of 
the  assets  or  pledge  them  as  security 
for  the  representative's  private  debt  is 
per  se  notice  of  misapplication,  and  in- 
volves the  purchasing  or  pledge  creditor 
in  the  fraud.  Wms.  Exrs.  937,  and 
Perkins's  note.     And  such  is  now  the 

42 


general  English  and  American  rule  on 
this  subject.  lb.  And  though  the 
representative  might  give  his  own  note 
as  a  voucher  for  money  obtained  for 
a  legitimate  purpose  connected  with  a 
bond  fide  administration,  and  pledge  as- 
sets to  secure  it;  yet  if  he  gave  it  for 
some  private  debt  of  his  own,  created 
before  or  during  his  trust,  but  inde- 
pendently of  it,  and  due  the  pledgee, 
the  pledge  transaction  could  not  stand. 
See  Virgin,  J.,  in  Carter  v.  Manufac- 
turers'Bank,  71  Me.  44S.  A  sale  which 
allows  the  purchaser  to  credit  the  price 
in  liquidation  of  the  representative's 
private  debt  has  been  considered,  if  not 
avoided,  as  leaving  the  purchaser  still 
responsible  to  the  estate  for  the  pur- 
chase-money. Chandler  v.  Schoonover, 
14  Ind.  324.  A  purchase  of  the  testa- 
tor's effects  at  a  nominal  price,  or  at  a 
fraudulent  undervalue,  in  collusion  with 
the  representative,  renders  the  pur- 
chaser liable  for  the  full  value;  or,  at 
the  option  of  those  interested,  the  trans- 
fer may  be  set  aside.  Rice  v.  Gordon, 
II  Beav.  265;  Wms.  Exrs.  936;  Sacia 
V.  Berthoud,  II  Barb.  15.  And  where 
parties  dealt  with  an  executor,  who  was 
obviously  exercising  his  power  to  dis- 
pose of  the  personal  assets  to  raise 
money,  not  immediately  for  the  settle- 
ment of  the  estate,  but  for  the  business 
of  a  commercial  tirm,  it  was  lately  held 
that  they  were  bound  to  look  into  his 
authority  under  the  will  before  purchas- 
ing such  assets  or  loaning  money  on 
their  pledge;  and  that  not  having  done 
so,  their  title  failed,  the  transaction 
being  impeached  on  behalf  of  the  estate 


CHAP.   IV.]       REPKESEXT.VTIVe's    POWER    TO    SELL,    ETC.       §   353 

§  353-  I^isposal  of  Chattels  Real;  assiguiug  aud  underletting 
Leases.  —  The  executor  or  administrator  may,  by  virtue  of  his 
office,  and  as  representative  of  the  deceased  entitled  to  chat- 
tels real,  assign  and  dispose  absolutely  of  the  leases  and  terms 
for  years,  whose  title  thus  devolves  upon  him  ;  subject,  of 
course,  to  the  usual  restrictions  imposed  upon  his  power  to 
alienate.^  This  power  to  assign  or  underlet  is,  however, 
frequently  restrained  or  excluded  in  modern  times  by  the 
original   terms  of  the  lease,   so  that  the  lessor's  consent  is 


as  fraudulent.  Smith  v.  Ayer,  loi  U.  S. 
Supr  320.  And  see  Salmon  v.  Clagett, 
3  Bland,  125;  Le  Baron  v.  Long  Island 
Bank,  53  How.  (N.  Y.)  Pr.  286. 

Where,  too,  the  representative  mort- 
gages personal  property  of  the  deceased 
for  purposes  which  the  mortgagee,  under 
the  circumstances,  is  notified  are  a  fraud 
upon  the  estate,  the  mortgage  may  be 
avoided  on  behalf  of  those  interested 
in  the  estate  and  aggrieved  thereby. 
Salmon  v.  Clagett,  3  Bland,  125;  Colt 
V.  Lesnier,  9  Cow.  320;  Wilson  v.  Dos- 
ter,  7  Ired.  Eq.  231;  Parker  v.  Gilliam, 
10  Yerg.  394.  In  a  word,  "  those  who 
receive  trust  property  from  a  trustee  in 
breach  of  his  trust  become  themselves 
trustees  if  they  have  notice  of  the  trust." 
"This  general  doctrine,"  observes  Chap- 
man, J.,  in  Trull  v.  Trull,  13  Allen,  407, 


and  the  broker  pledged  the  certificates 
to  a  third,  who  advanced  money  on 
them,  supposing  the  broker  to  be  the 
owner,  the  transfers  showing  on  their 
face  that  the  title  came  from  the  execu- 
tor, the  pledgee's  title  was  likewise  up- 
held with  deference  to  mercantile  usage. 
Wood's  Appeal,  92  Penn.  St.  379.  By 
commercial  usage,  the  court  here  ob- 
served, a  certificate  of  stock  accom- 
panied by  an  irrevocable  power  of  attor- 
ney, either  filled  up  or  in  blank,  is  in 
the  hands  of  a  third  person  presumptive 
evidence  of  ownership  in  the  owner; 
and  where  the  party  in  whose  hands  the 
certificate  is  found  is  a  holder  for  value, 
without  notice  of  any  intervening  equity, 
his  title  cannot  be  impeached.  Wood's 
Appeal,  ib.,  citing  authorities.  For 
whatever  the  pledgor's  own  breach  of 


'  has  been  applied  to  a  great  variety  of    trust,  or  an  agent's  abuse  of  authority, 


cases. 

But  where  a  bank  in  good  faith  lent 
money  to  an  executor  upon  his  individ- 
ual note,  secured  by  a  pledge  of  stocks 
belonging  to  the  estate,  and  upon  his 
statement  that  the  loan  was  for  the  pur- 
poses of  the  estate,  the  pledge  was  in  a 
recent  case  held  valid,  so  that  the  stock 
could  not  be  recovered  without  refund- 
ing the  loan.  Carter  v.  Manufacturers' 
Bank,  71  Me.  448.  Knowledge  of  the 
representative's  fraud  in  procuring  the 
loan  is  not  to  be  inferred  from  his  de- 
sire to  renew  and  continue  the  loan  for 
nearly  four  years.  Goodwin  v.  Ameri- 
can Bank,  48  Conn.  550.  And  where 
an  executor  pledged  stock  to  his  broker 
as  collateral  security  for  his  own  debt. 


one  who  confers  upon  another  by  a 
written  transfer  all  the  indicia  of  owner- 
ship of  property  is  estopped  to  assert 
title  as  against  a  third  person,  acquiring 
it  bond  fide  for  value;  and  the  principle, 
reluctantly  perhaps  to  be  admitted  in 
the  settlement  of  a  dead  person's  estate, 
applies  undoubtedly  against  a  living 
owner. 

Purchaser's  title  under  sale  not  af- 
fected by  discovery  and  probate  of  a 
later  will.  Ellis  v.  Davis,  109  U.  S. 
485;   27  Ch.  D.  220. 

1  Bac.  Abr.  Leases,  I.  7;  Wms.  Exrs. 
939;  Taylor  Landl.  &Ten.  §  133.  See 
Drohan  v.  Drohan,  i  B.  &  B.  185; 
Keating  v.  Keating,  i   Lloyd  &  G.  133. 


§  354  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV 

made  a  prc-rcquisite  ;  in  which  case  it  becomes  a  question  of 
construction  whether  an  express  restraint  upon  alienation 
or  underletting  shall  take  effect  against  executors  or  adminis- 
trators, or  be  held  binding  only  upon  the  lessee  personally. 
If  the  executors  or  administrators,  as  well  as  the  lessee,  are 
named  in  the  proviso  or  covenant,  they  cannot  assign,  under- 
let, or  dispose  of  the  term  without  the  lessor's  permission  ; 
though  it  appears  otherwise,  where  such  representatives  are 
not  mentioned  in  the  covenant.^ 

The  executor  or  administrator,  in  whom  leaseholds  become 
vested,  should  ordinarily  sell  and  assign  and  let  the  assignee 
take  the  risks  as  to  the  value  of  his  purchase.  In  some  cases 
an  underlease  from  the  representative  himself  will  be  sup- 
ported, though  this  is  an  exceptional  mode  of  dealing  with 
such  assets.^  But  in  a  recent  English  case  it  is  held  to  be 
nltf'a  vires,  and  a  breach  of  trust  £or  an  executor  or  adminis- 
trator to  grant  an  underlease  of  leaseholds  of  his  testator  or 
intestate,  with  an  option  of  purchase  to  be  exercised  by  the 
sub-lessee  at  some  future  time  at  a  fixed  price. ^-  The  pro- 
ceeds of  an  absolute  disposition  of  the  lease,  or  the  rents 
accruing  from  an  underlease,  or  any  other  beneficial  enjoy- 
ment of  the  premises,  become  assets  of  the  estate  in  the 
personal  representative's  hands.^ 

§  354-  Restraints  upon  the  Po'wer  to  dispose  of  Assets  as  con- 
cerns the  Representative  himself.  —  To  speak  of  limitations 
upon  the  representative's  power  to  alienate  and  transfer  the 
personal  assets,  more  particularly  as  they  affect  the  official 
responsibility  of  the  representative  himself  and  the  liability 
of  the  sureties  on  his  bond,  the  rule  is  that  he  must  not  sell, 

1  Wms.  Exrs.  940-943,  and  cases  That  an  administrator  has  no  power 
cited;  Roe  v.  Harrison,  2  T.  R.  425;  to  mortgage  leaseholds,  under  leases  not 
Lloyd  V.  Crispe,  25  Taunt.  259.  And  containing  repairing  covenants,  in  order 
see  supra,  §  223.  to  raise  money  for  repairing  the  prop- 

2  Bac.  Abr.  Leases,  I.  7;  Wms.  Exrs.  erty,  see  Ricketts  v.  Lewis,  20  Ch.  D. 
939-  745.     And    see  post.    Part  VIL    as    to 

3  Oceanic  Steam  Nav.  Co.  v.  Suther-  dealings  with  real  estate. 

berry,  29  W.  R.  113.  A  grant   of  letters  obtained  by  sup- 

*  Bac.  Abr.  Leases,  I.  7;   Wms.  Exrs.  pressing  a  will  is  not  at  this  day  treated 

939;    2  W.  Bl.  692;  Bank  v.  Dudley,  2  as  void  ab  initio.     See  supra,  §   160. 

Pet.  492;  Taylor  Landl.  &  Ten.  §  133.  Hence  a    sale    of   leaseholds   by  sucl) 

424 


CHAP.  IV.]      REPRESENTATIVE'S    POWER   TO    SELL,    ETC.       §  355 

pledge,  or  otherwise  transfer  personal  property  belonging  to 
the  estate,  except  it  be  in  the  exercise  of  good  faith  and 
reasonable  prudence,^  for  the  benefit  of  the  estate  and  with- 
out perversion  of  the  assets  to  other  purposes.  Though 
wrongful  or  imprudent  transfer  may  pass  a  good  title  to  the 
transferee,  it  cannot  exonerate  the  representative  who  has 
made  it  from  direct  responsibility,  as,  in  our  practice,  an 
official  subject  to  removal,  whose  bond  may  be  prosecuted  for 
the  benefit  of  those  suffering  in  interest  through  his  malad- 
ministration.2  In  some  States  it  is  laid  down  that  an  admin- 
istrator can  sell  only  to  pay  debts  and  make  distribution  ;  ^ 
and  yet  in  connection  with  the  investment  and  reinvest- 
ment of  funds  not  needed  for  immediate  disbursement,  the 
discretion  of  a  representative  seems  rightfully  a  broader  one  ; 
and  whether  he  be  executor  or  administrator,  the  true  cri- 
terion appears  to  be  rather  whether  he  exercised  reasonable 
prudence  and  good  faith  under  all  the  circumstances,  in  mak- 
ing the  transfer.* 

§  355-  Representative's  Liability  for  Negligence,  Fraud,  etc., 
in  the  sale  of  Assets.  —  Delays  attending  the  sale  of  particular 
assets  may  not,  therefore,  be  inexcusable,  though  loss  or 
depreciation  in  value  should  result ;  provided  the  represen- 
tative's course  appears  to  have  been  honorable  in  intent  and 
not  unreasonable.^  But  the  executor  or  administrator  is 
bound  to  exercise  due  and  reasonable  care  and  diligence,  as 
well  as  good  faith,  in  disposing  of  assets,  as  to  the  time,  man- 
ner, and  terms  of  the  sale  ;  more  especially  where  he  acts 
upon  his  own  responsibility,  without  consulting  either  the 
court  or  the  parties  in  interest.^     For  the  consequences  of 

an  administrator   to    a    bond  fide  pur-  Sherman  v.  Willett,  42  N.  Y.   146;    13 

chaser  before  revocation  of  the  letters,  Allen,  407. 

is  upheld.      Boxall  v.  Boxall,  27  Ch.  D.  ^  Dugan  v.  Hollins,  11  Md.  41  ;  Mc- 

220,  distinguishing  2  Leo.  182.  Rae  v.  McRae,  3  Bradf.  199;    Mead  v. 

^  "Ordinary  prudence,"  according  to  Byington,  10  Vt.  116;   Stewart  v.  Stew- 

the  American  nde;    less  than   this,  per-  art,  31  Ala.  207;    supra,  §  315. 

haps,    by  the    English    standard.      See  •' Griswold  v.  Chandler,  5  N.  II.  492; 

supra,  §  315.  Orcutt    v.   Orms,    3    Paige,    459.      See 

2  Oveilield  v.  Bullitt,  i  Mo.  749.  supra,  §  315,  as  to  whether  the  stand- 

*  Baines  v.  McGee,  9  Miss.  208.  ard  is  "  ordinary  "  or  "  slight "  care  and 

*  Mead   v.    Byington,    10   Vt.    1 16;  diligence. 

425 


§  35^  EXECUTORS    AND    ADMINISTRATORS.  [PART    IV. 

his  own  fraud,  in  connection  with  a  transfer,  he  is  unques- 
tionably answerable,  on  the  usual  principles,  to  the  innocent 
parties  injured  thereby.^  The  time  and  method  chosen  by 
the  representative  for  making  a  sale  and  disposing  of  assets 
should  be  reasonable  under  all  the  circumstances.^  And  if  he 
act  under  judicial  directions,  he  must  comply  with  them.^ 
Where  the  property  is  of  a  fluctuating  and  uncertain  charac- 
ter, like  speculative  stocks  and  securities  which  might  rise 
or  fall,  postponing  their  disposition  to  the  period  when  it 
becomes  strictly  necessary  to  realize  such  assets  in  order  to 
settle  the  estate,  is  not  to  be  imputed  as  culpable  default, 
provided  that  under  the  circumstances  reasonable  prudence 
and  good  faith  were  displayed.* 

If  the  representative  fails  in  his  duty  in  these  or  other 
respects,  he  may  be  held  to  account  for  the  property  on  the 
basis  of  the  inventory  value,  or  perhaps  the  actual  loss  to  the 
estate;^  but  if  he  does  his  whole  duty  with  fidelity  and  rea- 
sonable care,  he  cannot  be  charged  with  a  loss  or  deprecia- 
tion of  the  assets.  A  failure  to  sell  and  dispose  of  personal 
assets  does  not  necessarily  impute  carelessness  to  the  exec- 
utor or  administrator,  but  the  circumstances  should  be  con- 
sidered.^ 

§  356.  The  same  Subject ;  Obtaining  Payment  or  taking  Secu- 
rity for  the  Purchase-Money.  —  As  to  carelessness  or  bad  faith 
in  procuring  payment  or  taking  or  enforcing  security  for  the 
purchase-money,  the  same  doctrine  applies.  Thus,  where 
the  representative  sells  personal  property  by  order  of  court, 
with  credit  to  be  given  on  specified  security  for  the  purchase- 
money,  but  allows  the  purchaser  to  carry  away  the  property 
without  giving  such  security,  and  the  security  cannot  after- 

1  Skrine  v.  Simmons,    11   Ga.  401;  ^  Griswold  e/.  Chandler,  5  N.H.492; 
Heath  v.  AUin,   i   A.  K.  Marsh.  442;  Pinckard  v.  Woods,  8  Gratt.  140. 
Harrington    v.    Brown,    5    Pick.    519;  "  McRae    v.    McRae,  3    Bradf.   199. 
Miles  V.  Wheeler,  43  111.  123;   Woods  Shipping  goods  in  good  faith,  to  be  sold 
V.  North,  6  Humph.  309.  abroad  instead  of  in  the  home  market, 

2  Griswold  z*.  Chandler,  5  N.  H.  492;  does  not  necessarily  charge  the  repre- 
Marsden  v.  Kent,  25  W.  R.  522.  sentative  with  the  loss  ensuing,  his  course 

2  McDonald,  Re,  4  Redf.  321.  not  being  imprudent   in    itself,    though 

*  Marsden  v.  Kent,  25  W.  R.  522.         resulting  unfortunately.     Bryan  v.  Mul- 
ligan, 2  Hill  (S.  C.)  Ch.  261. 

426 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.   §  357 

wards  be  obtained,  this  is  culpable  negligence  on  his  part, 
and  he  must  answer  to  the  estate  for  the  loss.^  For  in  mak- 
ing a  sale  under  judicial  directions,  he  cannot  safely  disre- 
gard the  terms  prescribed.  Indeed,  a  sale  of  assets  made  on 
credit,  and  without  taking  security  of  any  sort  from  the  pur- 
chaser, can  rarely  be  considered  a  prudent  transaction  on  the 
part  of  a  fiduciary,  so  as  to  exempt  him  from  the  risk  of 
subsequent  loss.^  And  in  pursuing  the  security  taken,  or 
attempting  to  recover  property  transferred,  one  may  be  cul- 
pably negligent,  or  the  reverse.^  Security  taken  in  connec- 
tion with  a  transfer  of  the  assets,  by  the  representative, 
enures  properly  to  the  benefit  of  the  estate.^ 

On  the  other  hand,  where  the  representative  takes  security 
or  a  note  for  the  purchase-money,  and  a  loss  occurs  not  at- 
tributable to  his  fault,  he  is  only  chargeable  with  the  amount 
actually  collected  and  realized.^  If  a  sale  be  made  on  credit, 
it  is  not  improper  to  receive  the  money  before  the  expiration 
of  the  credit.^ 

§  357-  Collusive  or  Fraudulent  Disposition  of  Assets  by  the 
Representative.  —  Where  an  executor  or  administrator  col- 
lusively  sells  personal  property  of  his  decedent  at  an  under- 
value, when  he  might  have  obtained  a  higher  price,  or  so  as 
to  lose  the  price  altogether,  it  is  a  devastavit,  and  he  shall 
answer  for  the  real  value.'  Or  if,  from  improper  motives,  he 
procures  an  advantageous  sale  to  be  set  aside  for  technical 
reasons  against  the  purchaser's  will  and  procures  resale  at  a 
loss,  he  must  make  good  the  loss.^     And,  notwithstanding 

1  Hasbrouck  v.  Hasbiouck,  27  N.  Y.  ^  Qrcutt    v.    Orms,    3    Paige,    459; 

182;   Vreeland  v.  Vreeland,  13  N.  J.  L.  Stukes  v.  Collins,  4  Desau.  207;  Chand- 

512;  Massey  jy.  Cureton,  i  Cheves,  181;  ler  v.  Schoonover,  14  Ind.  324;   Dilla- 

Betts  V.  Blackwell,  2  Stew.  &  P.  373;  baugh's  Estate,  4  Watts,  177. 
Davis   V.    Marcum,   4    Jones  Eq.    189;  '^  Johnston's  Estate,  9  \V.  &  S.  107. 

Peay  v.  Fleming,  2  Hill  Ch.  97;   South-  And  see  §  323. 

all  V.  Taylor,  14  Gratt.  269.     But  inci-  ^  See  Pulliam  v.  Winston,  5   Leigh, 

dental  delays  or  omissions  in  connection  324;    Napier  v.  Wightman,  .Spears,  Ch. 

with  security  are  not  necessarily  culpa-  357. 

ble.      Gwynn    v.   Dorsey,   4   Gill  &  J.  ^  Stewart  -'.  Stewart,  31  Ala.  207. 

453-  ^  Gwynn  v.  Dorsey,  4  Gill  &  J.  453. 

On   failure   of  compliance   with  the  See  57  Cal.  407. 
terms    of  sale,   the  representative  may  '' Skrine   v.   Simmons,   11    Gd-  4.01; 

sue  the  purchaser  at  once.     Peebles  v.  Heath  v.  Allin,  i  A.  K.  Marsh.  ^\2. 
Oveiton,  2  Murph.  384.  •*  Mountcaslle  z/.  Mills,  11  Heisk.  267. 

427 


§   358  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  form  of  a  judicial  or  a  public  sale  was  pursued,  this  will 
not  debar  a  court  of  equity  from  examining  into  the  whole 
transaction,  and  considering  whether  there  was  a  collusive 
sale  to  defraud  the  estate  of  a  just  price. ^ 

Where  there  is  any  collusive  and  fraudulent  dealing  with 
the  personal  assets  of  an  estate,  or  a  misappropriation,  not 
only  a  creditor,  but  a  legatee,  whether  general  or  specific,  or 
a  distributee,  is  entitled  to  follow  the  assets  in  equity.^  But 
all  such  rights  must  be  enforced  within  a  reasonable  time, 
considering  the  opportunity  afforded  for  ascertaining  the  true 
character  of  the  transaction,  or  else  the  right  will  be  barred 
by  their  presumed  acquiescence.^  And,  in  American  probate 
practice,  where  bonds  are  given  by  the  fiduciary,  such 
are  the  faculties  for  removing  unfaithful  executors  and 
administrators  and  appointing  their  legal  successors,  that 
adequate  remedies  at  law  for  recovering  assets  improperly 
transferred  may  frequently  be  found  without  asking  a  court 
of  equity  to  interpose.^ 

§  35^.    Purchase   by   a  Representative   at  his   Own   Sale,  etc, 

—  The  earlier  and  more  conservative  rule  is,  that  an  execu- 
tor or  administrator  cannot  be  allowed  to  purchase  from 
himself  any  part  of  the  assets,  even  though  making  a  con- 
duit of  the  title  through  some  third  person  ;  but  he  shall 
be  considered  in  such  transactions  a  trustee  for  the  persons 
interested  in  the  estate,  and  shall  account  for  the  utmost 
extent  of  advantage  made  by  him  of  the  subject  so  pur- 
chased.^ And  hence,  a  sale  by  the  representative  to  him- 
self of  personalty  belonging  to  the  estate,  has  been  treated 
as  fraudulent /^ri'^  and  void,  even  though  made  at  public  auc- 
tion at  a  fair  price,  a  third  person  being  the  nominal  bidder  to 


^  Skrine  v.  Simmons,    II   Ga.  401;  man,   2   Atk.  41 ;    McLeod   v.   Drum- 
Heath  f.  Allin,  i  A.  K.  Marsh.  442.    As  mond,    14    Yes.    353;     17    Ves.     152; 
to  the  fraudulent  pledge  or  mortgage  of  Flanders  v.  Flanders,  23  Ga.  249. 
assets,  see  supra,  §  352.  *  .See   Mawhorter   v.   Armstrong,   16 

■2  Hill  V.  Simpson,  7  Ves.  152;  Wilson  Ohio,  188;  Hart  v.  Hart,  39  Miss.  221. 
V.  Moore,  i  My.  &  K.  337;  Flanders  v.  ^  Hall  v.  Hallett,  i  Cox,  134;  Wat- 
Flanders,  23  Ga.  249.  son  v.  Toone,  6  Madd.  153;  Wms.  Exrs. 

8  Wms.  Exrs.  938;  Elliott  v.  Merri-  938. 

428 


CHAP.  IV.]       representative's    POWER    TO    SELL,    ETC.       §   358 

whom  the  immediate  transfer  is  made.''  But  the  preponder- 
ance of  American  decisions  tends  rather  to  the  conclusion 
that  a  purchase  of  assets  by  the  e.xecutor  or  administrator, 
or  his  taking  and  accounting  for  the  same  at  their  appraised 
value,  may  often  be  really  advantageous  to  the  estate,  and 
that  such  advantage  is,  after  all,  the  main  thing  to  be  con- 
sidered. They  hold  that,  at  all  events,  a  purchase  by  the 
representative  is  not  absolutely  void,  but  voidable  only  by 
persons  interested  in  the  estate  at  their  option  ;2  nor  even 
by  these  if  they  have  directly  sanctioned  or  acquiesced  in 
the  transaction,^  or  if,  from  their  laches  and  delay,  acquies- 
cence on  their  part  may  legally  be  fairly  inferred  to  the 
quieting  of  title.*  The  sale  will  be  treated  as  essentially 
valid  until  avoided  ;  ^  and,  while  any  party  interested  may 
apply  to  have  the  sale  set  aside,  notwithstanding  the  acqui- 
escence of  the  others,  it  is  not  for  a  stranger  to  exercise 
any  option  in  the  matter.*" 

The  representative,  moreover,  who  has  advanced  his  own 
funds  to  pay  debts  of  the  decedent,  is  allowed  to  retain  any 
specific  article  at  a  fair  valuation,  and  his  purchase  at  the 
sale  may  be  treated  as  evidence  of  his  election  accordingly.' 

A  purchase  by  the  representative  at  his  own  sale  must, 
however,  in  order  to  stand  assault,  be  in  the  interest  of  the 
estate.     If  it  appear  that  he  purchased  the  property  at  less 


1  lb.;  Miles  v.  Wheeler,  43  111.  123;  *  lb.;  Dunlap  v.  Mitchell,  10  Ohio, 
Ely  w.  Horine,  s  Dana,  398;  Sheldon?^.  117;  Wms.  Exrs.  938,  note  by  Per- 
Rice,  30  Mich.  296.  kins. 

2  Harrington  v.  Brown,  5  Pick.  519;  ^  Litchfield  z'.  Cudworth,  15  Pick.  24; 
Mercer  z'.  Newson,  23  Ga.  151;  Ander-  Jackson  v.  Vandalfsen,  5  Johns.  43; 
son  V.  Fox,  2  Hen.  cS:  M.  245;  McLane  Wms.  Exrs.  938,  Perkins's  note;  Lo- 
V.  Spence,  6  Ala.  894;  Blount  v.  Davis,  throp  v.  Wightman,  41  Penn.  St.  297. 

2  Dev.  19;    Mead  v.  Byington,   10  Vt.  "  Ely  v.  Horine,  5  Dana,  398.     See 

116;  Ives  t/.  Ashley,  97  Mass.  198;  Gil-  i  Desau.  150. 

bert's  Appeal,  78  Penn.  St.  266;  Moses  The  mere  fact  that,  long  after  an  ad- 
s'. Moses,  50  Ga.  9;  Staples  v.  Staples,  ministrator's  sale  the  administrator  pur- 
24  Gratt.  225.  And  see  Sheldon  v.  chased  the  property  from  the  purchaser 
Rice,  30  Mich.  296.  at  such  sale,  is  not  sufficient  proof  that 

8  Williams  v.   Marshall,  4  Gill  &  J.  the  fiduciary   was  substantially  a   pur- 

376;   Lyon  V.  Lyon,  8  Ired.  201.  chaser  at  his  own  sale  through  the  me- 

*  Todd    V.    Moore,    i     Leigh,    457;  dium  of  another.    Painter  z'.  Henderson, 

Flanders  v.  Flanders,  23  Ga.  249.    And  7  Penn.  St.  48. 
see  Miller  v.  Binion,  ^^^  Ga.  ^^. 

429 


§  35^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

than  its  value,  has  never  accounted  for  the  proceeds,  and 
is  insolvent,  chancery  will  set  the  sale  aside,  not  only  as 
against  him,  but  as  against  purchasers  under  him  with 
notice.^  Where  an  executor  or  administrator  purchases  at 
his  own  sale,  he  may  be  held  accountable  for  all  the  profits 
of  the  transaction  ;  and  if  the  total  profit  be  uncertain,  he 
is  chargeable  with  the  largest  amount  presumable.^  And 
if  he  purchase  personalty  of  the  deceased,  though  at  public 
auction,  at  a  less  price  than  the  appraised  value  in  the 
inventory,  he  is  liable  to  be  held  to  account  for  the  differ- 
ence.^ In  general,  if  the  sale  be  not  avoided,  the  represen- 
tative is  chargeable,  together  with  the  sureties,  on  his  bond, 
for,  at  least,  the  full  and  true  price  at  which  he  purchased  ;  * 
but  where  the  transaction  is  assailed  by  a  party  in  interest, 
for  the  actual  value  of  the  property  as  nearly  as  may  be.^ 
While  such  transactions  may  not  be  positively  illegal,  they 
justify  and  require  a  close  scrutiny  into  the  good  faith  and 
fairness  of  the  transaction  ;  being  liable  to  gross  abuses, 
like  the  purchase  of  an  attorney  from  his  client  or  a  guardian 
from  his  late  ward.^ 

It  is  held  that  where  the  representative  himself  pur- 
chases at  his  sale  of  the  decedent's  estate,  and  uses  the 
assets  of  the  estate  in  making  such  purchase,  those  inter- 
ested may  elect  to  consider  the  appropriation  a  conversion, 
or  may  treat  him  as  a  purchaser  in  trust  for  their  benefit.'^ 
Courts  incline  to  favor  the  representative's  correction  of 
an  inadvertent  purchase  by  himself  at  his  sale  of  the  assets  ;^ 
but  the  representative  who  made  the  sale  is  not  the  proper 


^  Sheldon    v.  Woodbridge,  2    Root  ^  See  Gilbert's  Appeal,  78  Penn.  St. 

(Conn.)  473;     McCartney  v.  Calhoun,  266. 

17  Ala.  301;   Lyon  v.  Lyon,  8  Ired.  L.  "  Moses  v.  Moses,  50  Ga.  9.    Buying 

201 ;    McKey  v.  Young,  4  Hen.  &  M.  in  legacies  is  culpable  in  a  representa- 

430.  tive.    Goodwin  z'.  Goodwin,  48  Ind.  584. 

2  Brackenridge  v.  Holland,  2  Blackf.  "  Julian   v.    Reynolds,   8   Ala.   680; 

377,  And  see,  as  to  assignment  of  stock,  be- 

'  Griswold   v.    Chandler,    5    N.    H.  longing  to  the  estate,  to  the  representa- 

492.  tive  personally,  Whitley  v.  Alexander, 

*  Raines    v.    Raines,    51    Ala.    237;  73  N.  C.  444. 

Moffatt  V.  Loughridge,  51  Miss.  21 1.  ^  Cannon  v.  Jenkins,  I  Dev.  Eq.  422. 


CHAP.   IV.]       representative's    POWER    TO    SELL,    ETC.       §   359 

person  to  avoid  the  transaction  to  the  detriment  of  another's 
interests  thereby  acquired.^ 

In  fine,  according  to  the  better  authorities,  a  purchase 
by  the  executor  or  administrator  at  his  own  sale,  either 
directly  or  indirectly,  will,  though  not  absolutely  void,  be 
set  aside,  upon  the  timely  application  of  any  party  inter- 
ested in  the  estate ;  and  this  rule  is  of  general  application 
to  sales  of  trust  property.^ 

§  3  59.  Re-opening  the  Representative's  Voidable  Transfer,  etc. ; 
Relief  as  against  Third  Parties.  —  Generally  speaking,  if  an 
executor  or  administrator  sells,  mortgages,  or  pledges  any  of 
the  personal  property  of  his  decedent's  estate  in  payment  of 
or  as  security  for  his  individual  debt,  or  otherwise,  in  perver- 
sion of  his  trust,  every  person  who  receives  any  part  of  this 
property,  as  a  participator  in  the  representative's  breach  of 
trust,  is  responsible ;  and  the  assets  wrongfully  transferred 
or  disposed  may  be  reached  by  creditors,  legatees,  and  dis- 
tributees   or   heirs.     The    relief  afforded  for  the  fraud  and 


1  And  see  Part  W.  post  as  to  salcf?  of 
the  decedent's  real  estate.  An  admin- 
istrator may  purchase  lands  of  his  in- 
testate which  are  sold  under  the  fore- 
closure of  a  mortgage;  for  the  admin- 
istrator is  not  a  trustee  of  his  decedent's 
real  estate.  Dillinger  v.  Kelley,  84  Mo. 
561 ;  Johns  v.  Norris,  7  C.  E.  Greene 
(N.  J.)  102.  Otherwise,  however,  in 
transactions  where  the  representative 
is  really  a  trustee,  as  in  the  sale  of 
land  for  the  payment  of  debts. 

2  Bennett,  Ex  parte,  10  Yes.  381 
Davone  v.  Fanning,  2  Johns.  Ch.  253 
Booraem  v.  Wells,  19  N.  J.  Eq.  87 
Lytle  V.  Beveridge,  58  N.  Y.  593.  Local 
statutes  prohibiting  such  purchases  are 
found.    84  Mo.  561. 

An  ancillary  representative  will  be 
presumed  to  have  authority,  by  virtue  of 
his  office,  to  sell  a  note  and  mortgage  be- 
longing to  the  estate,  in  the  absence  of 
evidence  to  the  contrary.  But  where 
the  executor,  in  the  last  domicile  of  the 
decedent,  included  in  his  inventory  a 

43 


note  due  to  his  testator  from  the  estate 
of  a  deceased  debtor  who  was  domi- 
ciled in  another  State,  secured  by  mort- 
gage on  land  in  that  State,  took  out 
ancillary  administration,  sold  the  note 
and  mortgage,  and  rendered  a  final  ac- 
count to  the  probate  court  of  that  State, 
which  was  there  allowed,  it  was  held 
that  such  allowance  of  the  disposition 
made  by  him  of  the  proceeds  of  the 
note  was  conclusive  in  the  settlement  of 
his  account  in  the  probate  court  of  last 
domicile  as  executor;  but  that  the  pro- 
bate court  of  last  domicile,  being  the 
place  for  final  and  full  settlement  of  the 
estate,  and  an  account  for  all  the  prop- 
erty and  effects  of  the  estate  wherever 
found,  might  inquire  into  the  good  faith 
of  the  sale,  and  if  it  should  find  that  the 
sale  was  fraudulent  and  the  executor 
the  real  purchaser  of  the  note,  could 
compel  him  to  account  for  the  excess  of 
the  value  of  the  note  above  what  he 
paid  for  it.  Clark  v.  Blackington,  no 
Mass.  369.  See  supra,  §  181. 
I 


§    T,6l  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

damage  appears  to  be  an  equitable  one  at  their  election  ;  no 
adequate  or  complete  remedy  existing  at  law,  or  none,  at  all 
events,  where  the  representative  and  his  sureties  are  worth- 
less.^ 

§  360.  Personal  Representative  cannot  avoid  his  o-wn  Voidable 
Transfer,  etc.  —  But  the  representative  cannot  avoid  his  own 
sale  or  pledge,  though  guilty  of  a  breach  of  trust  in  making 
it.  It  may  be  needful  and  proper  to  remove  him  from  the 
trust  and  appoint  another ;  but  such  a  removal  is  not  for  the 
purpose  of  reaching  the  assets  themselves,  but  preparatory 
rather  to  holding  the  delinquent  representative  to  account, 
and  suing  him  and  his  bondsmen  for  maladministration.  If 
the  unfaithful  representative  dies  or  is  removed  in  fact,  and  a 
representative  de  bonis  non  is  appointed,  the  rule  is  that  the 
latter  cannot  avoid  the  wrongful  transfer  of  his  predecessor, 
except  where  there  are  local  statutes  in  force  authorizing  a 
representative  de  bonis  non  to  do  what  otherwise  creditors, 
legatees,  or  distributees  could  alone  have  done.^  - 

§  361.  Whether  the  Representative  warrants  Title  Tvhen  he 
sells.  —  Where  an  executor  or  administrator  sells  or  transfers 
personal  property  of  the  decedent,  there  is  an  implied  repre- 
sentation to  the  purchaser  that  he  is  the  legal  representative 
of  the  estate,  and  has  general  authority  to  make  such  sale  or 
transfer ;  and,  should  it  prove  the  reverse,  the  purchaser  or 
transferee  may,  it  is  held,  be  relieved  from  the  contract  in 
equity.^  Jurisdiction  in  the  premises,  regular  procedure  by 
virtue  of  his  office,  is  what  an  executor  or  administrator  war- 
rants by  implication.  But,  in  sales  or  transfers  by  executors 
or  administrators,  there  is  no  implied  warranty  of  the  title  ; 

'  McLeodz'. Drummond,  17  Ves.  153;     Neale,  7  G.  &  J.  13;    Herron  v.  Mar- 

4  Brown,  C.  C.  127,  139;  Bean  v.  Smith,     shall,  5  Humph.  443.     See  c.  b,  post. 

2   Mason,    271;    Monell   v.    IMonell,   5  ^  Qig^jan  ?'.  Beasley,  i  Sm.  &  M.  Ch. 

Johns.  Ch.  297;    Riddle  v.  Mandeville,  561;   Woods  v.  North,  6  Humph.  309. 

5  Cranch,  322;  Field  v.  Schieffelin,  7  In  case  of  a  sale  under  a  void  judicial 
Johns.  Ch.  150;  Dodson  v.  Simpson,  2  order,  the  purchaser  is  not  bound  to 
Rand.  294;  Thomas  w.  White,  3  Littell,  pay  the  purchase-money  and  complete 
180.     .'^nd  see  stipi-a,  §  297.  his    title.     Beene   v.   Colienberger,    38 

2  Stronach  v.  Stronach,  20  Wis.  129,  Ala.  647;  Michel,  Succession  of,  20  I>a. 
133,    and     cases    cited;     Hagthorp    v.     Ann.  233. 


CHAP.   IV.]       representative's    POWER    TO    SELL,    ETC.       §   361 

and  the  purchaser  or  transferee  acquires  only  the  decedent's 
rights  in  the  property,  subject  to  his  incumbrances ;  so  that, 
in  the  absence  of  fraud  or  an  express  warranty  on  the  repre- 
sentative's part,  and  an  eviction,  the  buyer  or  transferee  can- 
not hold  him  personally  answerable  nor  the  estate.^  Indeed, 
the  purchaser  from  an  executor  or  administrator  takes  the 
risk  of  the  worthlessness  of  the  decedent's  title ;  and  he 
must  pay  the  price,  as  it  is  held,  even  though  that  title 
should  utterly  fail,  no  deceit  having  been  practised  upon 
him.2  Where,  however,  the  purchase-money  remains  in  the 
representative's  hands  still  undistributed,  it  is  equitable  and 
just,  as  other  cases  affirm,  that  the  representative  should 
refund  to  the  purchaser  in  such  a  case.^  And  fraudulent 
representations  made  by  the  representative  at  the  sale  may 
be  relied  upon  by  the  purchaser  who  was  misled,  so  as  to 
avoid  the  sale,  or  in  abatement  of  the  price  agreed  upon.* 
In  respect  of  warranty,  therefore,  executors,  administrators, 
and  other  trustees  constitute  exceptions  to  the  familiar  rule 
that  there  exists  in  every  sale  of  personal  property  an  implied 
warranty  of  title.^ 


1  Mockbee  v.  Gardner,  2  Har.  &  G. 
176. 

2  Cagar  v.  Frisby,  36  Miss.  178; 
Stanbrough  v.  Evans,  2  La.  Ann.  474. 
But  see  Wliite,  Succession  of,  9  La. 
Ann.  232.  A  fairer  rule  would  be,  that, 
if  in  such  a  case  the  sale  has  not  been 
completed  by  payment  of  the  money, 
the  purchaser  need  not  pay;  but  at  all 
events,  he  cannot  hold  an  innocent  rep- 
resentative personally  liable  should  the 
title  fail;  though  the  loss  might  here 
fall  properly  upon  the  estate.  The  in- 
demnity of  the  representative  is  what 
the  law  chiefly  insists  upon  in  such  in- 
stances. 

*  Mockbee  v.  Gardner,  2  Har.  &  G. 
176. 

*  Able  V.  Chandler,  12  Tex.  88. 

^  See  2  Schoul.  Pcrs.  Prop.  381  et 
seq.  as  to  warranty  in  sales;  Chapman 
V.  Speller,  14  Q.  B.  621;  Blood  v. 
French,  9  Gray,  197;   Brigham  v.  Max- 


ley,  15  111.  295;  Bartholomew  v.  War- 
ner, 32  Conn.  98.  The  reason  for  this 
exemption  from  personal  responsibility 
is  derived  from  the  nature  of  the  office 
held  by  the  representative  or  trustee. 
"  For  who,"  observes  Archer,  J.,  in 
Mockbee  v.  Gardner,  2  Har.  &  G.  177, 
"would  accept  an  office  of  this  kind,  if 
he  were  to  become  necessarily  the 
guarantee  of  the  good  title  of  him  whom 
he  represents,  in  all  the  property  sub- 
mitted to  his  charge  which  he  may  be 
obliged  by  order  of  the  court  to  sell? 
In  all  cases  in  which  the  title  sold  was 
ascertained  to  be  defective,  after  a  final 
distribution  of  the  estate,  the  adminis- 
trator, if  a  recovery  were  had  against 
him,  would  have  to  look  for  indemnity 
to  creditors,  distributees,  and  legatees. 
In  most  instances  his  prospect  of  se- 
curity would  never  be  realized,  and  no 
power  is  given  him  to  retain  for  such  a 
contingency." 


4^3 


§  362  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

But  even  here,  if  fraud  taints  the  transaction,  or  if  there 
has  been  an  express  warranty  and  eviction,  the  representative 
makes  himself  personally  liable  to  the  purchaser  for  the  con- 
sequences.^ It  becomes  a  question,  therefore,  whether  an 
express  warranty  which  the  representative  makes,  outside 
the  usual  scope  of  his  official  authority,  binds  the  estate  and 
not  himself  alone.  Some  courts  have  considered  that  the 
representative  is  competent  to  warrant  either  the  title  or  the 
soundness  of  personal  property  of  the  deceased  which  he 
offers  to  sell,  so  that  if  the  transaction,  as  between  the  pur- 
chaser and  himself,  be  fair  and  bond  fide,  the  warranty  v/ill 
obligate  the  estate  ;  or,  in  other  words,  that  the  power  to 
warrant,  on  his  part,  is  incidental  to  the  general  right  to  sell, 
pledge,  or  mortgage.^  But  local  statutes  may,  upon  a  fair 
construction,  be  found  to  regulate  this  whole  matter.^  An 
estate  ought  not  to  profit  unjustly  where  prevention  may  be 
seasonable.*  Yet  it  would  appear  the  better  opinion  that  a 
personal  representative  cannot  positively  bind  his  decedent's 
estate,  when  he  transcends  the  usual  limits  of  his  authority, 
and  warrants  the  decedent's  title  absolutely  or  the  soundness 
of  the  thing  he  offers.^  This  latter  rule,  though  sometimes 
operating  harshly,  is  found,  after  all,  the  most  convenient  for 
facilitating  a  prompt  and  equitable  settlement  of  the  estate  ; 
and  each  purchaser,  being  put  on  his  own  guard  in  such 
transactions,  should  inquire  into  the  title  for  himself,  or  offer 
a  less  price  in  consideration  of  the  risk  he  runs.^ 

§  362.   Sales  of  Negotiable  Instruments  by  the  Representatives. 

—  An  executor  or  administrator  has  a  right,  which  is  inhe- 

1  Mockbee  v.  Gardner,  2  Har.  &  G.  ®  If    the    representative    seeks,    by 

176;  Sumner  z'.  Williams,  8  Mass.  162;  making   express    warranty,   to    make  a 

Buckels  V.  Cunningham,  14  Miss.  358;  better  sale  for  the  estate,  he  may  well 

Able  V.  C'handler,  12  Tex.  88.  secure  himself  by  getting  distributees  or 

'^  tTraddock  v.  Stewart,  6  Ala.  77,  80.  others  in  interest  to  obligate  themselves 

^  lb.      As  to  mortgages  where    one  personally  in  return  ;  or  they  may  them- 

sells  with  warranty,  see  3  Mason,  285  ;  2  selves  undertake  to  make  express  war- 

Whart.  420.  ranty  to  the  purchaser. 

*  Williamson  v.  Walker,  24  Ga.  257 ;  The  representative   sometimes   sells 

Crayton  v.  Munger,  9  Tex.  285.  with  authority  from  a  sole  legatee   or 

°  Ramsey   v.   Blalock,   34  Ga.   376;  distributee.      See    Kelso  v.   Vance,   58 

Lynch  v.  Baxter,  4  Tex.  431.  Tenn.  334. 

434 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.   §  362 

rent  in  the  office,  to  sell  or  otherwise  tran.sfer  promissory 
notes,  bills  of  exchange,  or  other  negotiable  instruments 
belonging  to  the  decedent's  estate,  as  well  as  corporeal 
chattels,  and  under  corresponding  qualifications.^  For  his 
authority  to  dispose  of  personal  property  extends  to  the 
disposition  of  incorporeal  kinds  and  their  muniments  of 
title,  excepting,  perhaps,  for  those  common-law  barriers 
against  assignment,  which,  in  modern  practice,  have  been 
well-nigh  swept  away.^  And  the  purchaser  of  such  instru- 
ments in  good  faith  will  acquire  a  good  title,  even  though 
purchasing  at  a  discount,  unless  he  is  chargeable  with  knowl- 
edge of  a  fraudulent  perversion  on  the  representative's  part.^ 
Should  the  representative  dispose  improperly  of  such  assets 
and  the  rights  thereunder,  he  may  be  rendered  liable  on  his 
bond ;  yet  this  will  not  affect  the  title  of  an  indorsee, 
assignee,  or  other  transferee  who  takes  the  instrument  in 
good  faith  and  for  value.* 

But,  following  the  rule  elsewhere  noticed,  the  transfer 
of  a  note  due  to  the  estate  by  the  representative  in  pay- 
ment of  his  own  debt,  or  as  security  for  it,  gives  to  the 
transferee  with  notice  no  right  of  recovery.^  On  the  other 
hand,  if  a  balance  be  justly  due  to  the  representative  on 
the  settlement  of  his  accounts,  to  the  amount  of  the  nego- 
tiable instrument,  it  is  no  fraud  in  him  to  sell  and  appro- 
priate such  instrument  to  the  payment  of  his  claim.^ 

The    representative   may,    by   indorsement    or   the    other 

'  Rawlinson    v.    Stone,   3    Wils.    i;  z/.  Culbertson,  15  Ind.  441.     Under  the 

Wms.  Exrs.  943;   Gray  v.  Armistead,  6  codes  of  some  States,  the  rule  is  other- 

Ired.  Eq.  74;  Rand  v.  Hubbard,  4  Met.  wise.  Burbank  7a  Payne,  17  La.  Ann.  15. 
258;    Cleveland   v.   Harrison,    15   Wis.  As  to  application  of  the  statute   of 

670.     And  see  Nelson  v.  Stollenwerck,  limitations    to    such    transactions,    see 

60  Ala.  140.  Cleveland    v.   Harrison,    15    Wis.   670; 

2  See  I  Schoul.  Pers.  Prop.  96-109,  next  chapter. 
as  to  the  old   distinction   between  cor-  ^  Lutham  7/.  Moore,  6  Jones  Eq.  167  ; 

poreal  and  incorporeal,  or  ^/i^jj^'.f  i«/(?j-  Scranton  v.  Farmers'  Bank,  24   N.  Y. 

session  and  chnses   in  action,  with  the  424;   Scott   v.    Searles,    15    Miss.  498; 

common-law  rule  of  assignment.  Smartt  v.  Watterhouse,  6  Humph.  158; 

8  Gray  v.  Armistead.  6  Ired.  Eq.  74.  Williamson  v.  Morton,  2  Md.  Ch.  94; 

See  Munteith  v.  Rahn,  14  Wis.  210.  supra,  §  352. 

*  Hough   V.   Bailey,  32  Conn.  288;  ^  Ward    v.  Turner,  7    Ired.  Eq.  7;,. 

Wilson    V.    Doster.    7    Ired.    Eq.    231;  And  see  Rogers  i*.  Zook,  86  Ind.  237. 
Walker  v.  Craig,  18  111.  116;  Speelman 

435 


§  3^3  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

usual  means,  guarantee  payment  of  the  instrument  he  trans- 
fers ;  but  by  doing  so  he  hinds  himself  personally,  and  not 
the  estate,^  and  consequently  the  form  of  assigning  or 
indorsing  should,  as  a  rule,  be  so  prudently  expressed  that 
no  recourse  can  be  had  either  against  him  or  the  estate  he 
administers  upon.^ 

As  the  representative  may  sell  and  dispose  of  a  note  or 
other  negotiable  instrument  belonging  to  the  estate,  so 
may  he  dispose  of  it  with  pledge  or  mortgage  security 
accompanying  it,  and  assign  and  transfer  accordingly.^ 
Even  a  mortgage  secured  upon  real  estate  passes  with  the 
principal  indebtedness  as  personal  property,  if  unforeclosed, 
and  may  be  assigned  by  the  representative.'^ 

An  executor  or  administrator  may,  under  proper  circum- 
stances, sell  a  negotiable  instrument  or  other  incorporeal 
chose  at  a  price  below  the  nominal  amount,  as  he  certainly 
may  for  a  price  above  it ;  *  for  the  pursuance  of  official  duty 
with  integrity  and  reasonable  prudence  is  here,  as  in  sales 
of  things  corporeal,  the  standard  by  which  his  transactions 
should  be  tested. 

§  363.  Representative's  Authority  to  purchase.  —  The  power 
of  an  executor  or  administrator  to  purchase  follows  the 
general  doctrine  of  his  authority  to  sell,  invest,  and  re-invest.^ 
An  unauthorized  purchase  is  voidable  at  the  election  of  those 
in  interest.  Under  the  circumstances  presented  in  some 
particular  transaction,  it  may  be  matter  of  inquiry  whether 
the  purchase  made  by  a  representative  was  on  his  individual 
account  or  for  the  use  of   the   estate ;    and  •  here,  not    only 

1  Robinson  v.  Lane,  22  Miss.   161;      Miller  v.  Henderson,  10  N.  J.  Eq.  320; 
supra,  §  258.    Generally  speaking,  there     supra,  §  214. 

is  no  difference  between  an  indorsement  *  Wheeler   v.    Wheeler,  9  Cow.   34; 

of  a  note  by  the  deceased  and  one  by  Gray  v.  Armistead,  6  Ired.  Eq.  74.  And 

his  personal   representative.      Watkins  see    55    Miss.    278;    57   Ga.    232.     An 

V.  Maule,  2  Jac.  &  W.  243;  Wms.  Exrs.  executor  or  administrator  has  power,  in 

943.     For  a  case  of  incomplete  indorse-  good  faith  and  for  a  just  consideration 

ment  and  delivery  of  a  note  belonging  accruing  to  the  estate,  to  release  one  of 

to  an  estate,  see  Bromage  v.  Lloyd,  i  the  makers  of  a  promissory  note  exe- 

Ex.  32.     And  see  37  Miss.  526.  cuted  to  him  in  his  fiduciary  capacity, 

2  Ely  V.   Williams,   13   Wis.    I.     See  from  liability  for  the  balance.     Latta  z/. 
127  Mass.  174.  Miller,    109  Ind.  302.     And   see,  as  to 

8  Cleveland  z/.  Harrison,  15  Wis.  670;     his  power  to  compromise,  supra,  §  298. 

^  See  supra,  §  322,  as  to  investments. 

43^ 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.   §  364 

formal  instruments  of  title,  but  also  the  means  of  payment 
used,  and  the  advantageous  or  disadvantageous  character 
of  the  transaction  may  be  taken  into  consideration.^  If 
the  representative  misapplies  funds  of  the  estate  in  a  pur- 
chase, fraudulently  or  unreasonably,  he  may  be  held  account- 
able on  his  bond  for  the  misapplication  ;  and  where  the 
seller  was  cognizant  of  his  breach  of  trust,  those  interested 
in  the  estate  and  injured  thereby  may  bring  a  bill  in  equity 
to  compel  the  seller  to  refund  the  purchase-money  and  place 
them  in  statu  quo?' 

§  363  a.  The  same  Subject.  —  As  in  other  cases,  so  upon  his 
own  contract  of  purchase,  the  personal  representative  binds 
himself  individually  to  those  with  whom  he  deals,  whether 
the  estate  may  reimburse  him  or  not.^ 

§  364.  No  Authority  to  give  away  Assets.  —  The  exccutor 
or  administrator  has  no  inherent  right  to  give  away  assets  of 
the  estate,  even  though  he  should  deem  them  worthless.*  But 
to  give  assets  in  payment  of  some  claim,  or  as  an  offset  to 
what  may  be  due  the  representative  himself  on  a  settlement, 
is  a  different  matter. 

^  Colvin    V.    Owens,    22    Ala.     782;  his  executors    could    exercise  after   his 

Harper  v.  Archer,  28  Miss.  212.  death. 

2  Trull  z/.  Trull,  13  Allen,  407;   supra,  ^3   Port.   221;  Lovell  t'.  Field,  5  Vt. 

§  352.    See  Cousins,  Re,  30  Ch.  D.  203,  218. 

where  an  option  to  purchase  was  held  *  Radovich's  Estate  (Cal.)  16  P.  321. 
personal  to  a  testator,  and  not  such  as 

437 


§  366  EXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 


CHAPTER   V. 

LIABILITY    OF    AN    EXECUTOR    OR    ADMINISTRATOR. 

§  365.  Liability  in  Respect  of  Acts  of  Deceased  or  his  Own 
Acts.  —  The  liability  of  an  executor  or  administrator  may 
accrue  (i)  in  respect  of  the  acts  of  the  deceased  ;  or  (2)  in 
respect  of  his  own  acts.  These  two  subjects  will  be  con- 
sidered separately. 

§  366.  Liability  in  Respect  of  Acts  of  deceased ;  Survival  of 
Actions  against  the  Decedent  founded  in  Contract.  —  First,  as  to 
liability  in  respect  of  the  acts  of  the  deceased.  We  have 
elsewhere  considered  what  actions  survive  in  favor  of  the 
estate,  where  the  decedent  was  plaintiff.^  A  correspond- 
ing principle  applies  as  to  the  survival  of  actions  brought 
against  the  decedent  during  his  lifetime.  Accordingly,  it 
has  long  been  settled  in  our  law,  that  causes  of  action  which 
are  founded  in  any  contract,  duty,  or  obligation  of  the  dece- 
dent, and  upon  which  the  decedent  himself  might  have  been 
sued  during  his  lifetime,  will  survive  so  as  to  continue 
enforceable  against  his  estate.^  Consequently,  the  executor 
or  administrator  is  legally  answerable,  so.  far  as  the  assets 
in  his  hands  may  enable  him  to  respond,  for  debts  of  every 
description  which  were  owing  by  the  deceased,  whether 
debts  of  record,  such  as  judgments  or  recognizances  ;  debts 
due  on  special  contract,  as  for  rent  in  arrears,  or  on 
bonds,  covenants,  and  other  sealed  contracts  ;  or  debts  by 
simple  contract,  such  as  bills  and  notes,  and  promises  ex- 
pressed orally  or  in  writing.^ 

It  is  said  in  this  connection  that  there  is  no  difference  be- 
tween a  promise  to  pay  a  debt  certain,  and  a  promise  to  do  a 

1  Supra,  §  277.  Exrs.    1721;   Noy,   43;     Dyer,    344  b; 

2  Wms.  Exrs.  1721;  i  Saund.  216  a;  Smith  v.  Chapman,  93  U.  S.  Supr.  41; 
Atkins  V.  Kinnan,  20  Wend.  241.  Harrison  v.  Vreeland,  38  N.  J.  L.  366. 

*  Bac.    Abr.    Executors,  P.   I ;   Wms. 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  iGj 

collateral  act,  which  is  uncertain,  resting  only  in  damages,  sucli 
as  a  promise  by  the  decedent  to  give  such  a  fortune  with  his 
daughter,  or  to  deliver  up  such  a  bond  ;  for  wherever  in  this 
latter  class  of  cases  the  decedent  himself  was  liable  to  an 
action,  his  representative  shall  be  liable  also.^  Even  where 
the  cause  of  action  sounds  in  damages,  as  for  loss  of  one's 
money  or  one's  chattels  through  the  negligence  of  the  de- 
ceased, the  latter  being  an  attorney-at-law,  or  a  common  car- 
rier, and  the  damages  being  laid  as  for  breach  of  his  contract, 
the  action  will  survive  against  the  representative.^ 

This  survival  of  actions,  founded  in  the  decedent's  con- 
tract liability,  does  not  require  any  express  reference  in  the 
contract  itself  to  the  contingency  of  death,  nor  in  so  many 
words  to  one's  executors  or  administrators  ;  for  the  contract, 
if  not  personal  in  its  nature,  implies  of  itself  that  death  shall 
not  cut  off  the  survivor's  remedies.^  And  executors  or  ad- 
ministrators, being  but  officials  commissioned  to  wind  up  the 
decedent's  estate,  that  estate  as  of  course  goes  first  towards 
discharging  all  lawful  claims  and  demands  against  the  de- 
ceased which  may  be  outstanding  at  his  death.* 

§  367.  The  same  Subject ;  Exception  as  to  Personal  Contracts 
of  the  Deceased.  —  But  a  distinction  is  here  to  be  taken  in  favor 
of  contracts  of  a  personal  nature,  or  such  as  are  essentially 
limited  in  scope  by  one's  lifetime,  and  other  obligations.  A 
contract  to  deliver  1,000  cartridges  may  be  fulfilled,  or  a  note 
for  $1,000  paid  off,  by  one's  assignees  or  personal  represen- 
tatives, notwithstanding  his  own  death,  provided  assets  suf- 
fice for  sustaining  the  liability ;  and  such  contracts  are  gen- 

1  Bac.  Abr.  Executors,  P.  2;  Cro.  Hams  v.  Burrell,  i  C.  B.  402.  A  wfit 
Jac.  404,  417,  571,  662;  Wms.  Exrs.  was  issued,  but  before  it  could  be  served 
1722.  the  defendant  died.     Within  a  reasona- 

2  Knights  V.  Quarles,  2  B.  &  B.  102;  ble  time  after  executors  had  proved  the 
Cowp.  375;  Alton  V.  Midland  R.,  19  will  a  fresh  writ  was  served  against 
C.  B.  N.  s.  242;  Wms.  Exrs.  799,  1722;  them  for  the  same  cause;  and  it  was 
Wilson  X'.  Tucker,  3  Stark.  N.  P.  154.  held  that  the  executors  could  not  plead 
Cf.  Miller  w.  Wilson,  24  Penn.  St.  114;  the  statute  of  limitations,  though  thfc 
Long  V.  Morrison,  14  Ind.  595.  legal   period     had    meantime     expired. 

8  Bradburv  v.  Morgan,  i  H.  &  C.  249;     Swindell  v.  Bulkeley,  18  Q.  B.  D.  250. 
2    Mod.    268;    Bac.  Abr.    Exrs.    P.    I ;         *  See  Part  V.,  as  to  the    payment  of 
Wms.  Exrs.   1724;   3  Bulstr.  30;   Wil-     debts,  etc.,  against  an  estate. 

439 


§   367  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

erally  made  upon  some  consideration  of  reciprocal  advantage, 
which  the  death  of  either  party  should  not  ipso  facto  annul ; 
designating,  furthermore,  some  date  hereafter  at  which  the 
obligation  shall  mature,  regardless  of  every  such  contingency. 
There  are  no  such  personal  considerations  involved  in  a  con- 
tract of  this  sort  that  an  assignee  might  not  discharge,  as  well 
as  the  original  contractor.  Such  an  obligation,  profitable  or 
unprofitable,  and  as  for  fulfilment  or  damages,  the  survivor 
enforces  against  the  decedent's  estate,  nor  does  death  cancel 
it.  But  where  the  contract  was  personal  to  the  testator  or 
intestate  himself ;  as,  for  instance,  to  instruct  an  apprentice, 
to  employ  a  particular  servant ;  being  an  author,  to  compose 
a  certain  book,  or,  as  an  experienced  architect,  to  plan  a  build- 
ing ;  or,  as  a  soldier,  to  serve  in  the  army,  or,  in  general,  for 
hiring  ;  the  case  is  different.  Here,  it  may  be  assumed,  that 
unless  the  contract  expressly  provides  differently  (as  in  some 
instances  it  may),  death  necessarily  severs  the  relation  and 
puts  an  end  to  that  legal  obligation  which  has,  without  fault 
of  the  contractor  become  impossible  of  performance.  In 
such  instances  the  estate  of  the  decedent  is  relieved  of  all 
further  liability  under  the  contract ;  ^  though,  for  any  breach 
of  such  a  contract  committed  during  the  decedent's  life- 
time, the  executor  or  administrator  must  of  course  respond 

'  Cro.  Eliz.  533;  Siboni  v.  Kirkman,  vant  or  artisan  for  a  fixed  period,  that, 
I  M.  &  W.  423;  Robinson  v.  Davison,  if  he  died  meantime,  his  representatives 
L.  R.  6  Ex.  269 ;  Smith  v.  Wihiiington  would  be  bound  to  find  employment  or 
Coal  Co.,  83  111.  498;  Went  worth  v.  pay  for  the  remaining  period  at  the  cost 
Cock,  10  Ad.  &  L.  45;  Wms.  Exrs.  of  the  estate.  The  line  of  distinction 
1725;  supra,  §  278;  Bland  z'.  Umstead,  sometimes  runs  very  closely.  Cf.  Went- 
23  Penn.  St.  316.  A  contract  to  sup-  worth  v.  Cock,  10  Ad.  &  E.  45,  where 
port  a  parent  is  personal,  and  does  not  a  contract  to  supply  materials  for  a  cer- 
bind  the  representative.  Siler  v.  Gray,  tain  number  of  years  was  treated  as  ob- 
86  N.  C.  566.  There  may  be  various  ligatory  on  the  representatives  of  the 
contracts  of  a  personal  nature  brought  deceased  contractor,  and  therefore  as 
under  this  rule,  and  vice  versa,  the  entitling  them  to  the  profits  accruing 
courts  making  it  matter  of  judicial  inter-  from  a  proper  fulfilment  on  their  part, 
pretation.  Thus,  a  covenant  by  B.  not  with  Dickenson  v.  Callahan,  19  Penn. 
to  exercise  a  certain  business,  but  to  St.  227,  where  the  contrary  interpreta- 
solicit  business  regularly  for  A.,  upon  a  tion  was  given.  And  cf.  as  to  the  rep- 
certain  consideration,  does  not  bind  B.'s  resentative's  liability  for  advances  made 
widow  as  such.  Coke  v.  Colcroft,  2  W.  after  the  decedent's  death  on  a  continu- 
Bl.  856.  On  the  other  hand,  one  might  ing  guaranty,  Bradbury  v.  Morgan,  I  H. 
so  clearly  have  contracted  with  a  ser-  &  C.  249;   Wms.  Exrs.  1770. 

440 


CHAP,  v.]     LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  36/ 

out  of  the  assets,  as  in  other  cases.  Act  of  God  preventing 
or  terminating  the  performance  of  a  personal  contract,  is  held 
to  excuse  it ;  and  even  sickness  or  disability  may  justify  its 
breach  during  one's  life.^ 

The  personal  nature  of  a  contract  applies  with  similar 
force  as  between  those  who  have  occupied  the  relation  of 
master  and  servant,  or  principal  and  agent.  One's  clerk  or 
agent  is  discharged,  presumably,  by  the  employer's  death ; 
and  where  the  employment  was  by  a  firm,  the  death  of  one 
of  the  partners,  while  dissolving  the  firm,  dissolves  likewise 
the  relation  with  the  person  employed,  even  though  a  stated 
term  of  employment  had  not  yet  run  out.^  The  authority  of 
an  agent  is  commonly  revoked  by  the  death  of  his  principal ; 
and  consequently  the  agent  cannot  commonly  sue  the  ex- 
ecutor or  administrator  for  services  performed  after  the  prin- 
cipal's death,  though  this  were  upon  a  contract  made  for  a 
fixed  period  with  the  decedent  himself ;  for,  upon  notice  of 
death,  he  should  cease  performance  or  else  get  a  new  personal 
authority  elsewhere.^  The  rule  of  apportionment,  custom, 
statute,  or  express  contract,  all  seek  to  mitigate,  however, 
the  harsh  consequence  of  such  a  doctrine.^  And,  conversely, 
the  death  of  the  agent,  servant,  or  person  hired  or  employed, 
operates  similarly  against  the  principal,  master,  or  employer, 
where  the  law  is  left  to  operate  naturally.^ 

But  where  the  contract  between  the  parties  was  expressed 
in  writing,  the  language,  scope,  and  intendment  of  the  in- 
strument must  be  considered  in  instances  like  the  foregoing. 
Thus,  if  one  covenants  personally  in  a  lease,  his  death  may 
be  held  to  discharge  his  estate  and  his  personal  representa- 
tives from  all  obligation  further  than  performing  the  cove- 
nant during  his  own  life.  But,  as  leases  commonly  run,  this 
would  be  quite  exceptional  ;  and  covenants  usually  bind 
one's  executors,  and  administrators,  and  assigns,  during  the 
full  period,  in  express  terms.^ 

1  Schoul.  Dom.  Rel.  §  474.  ^  lb.     See    Powell     v.     Graham,    7 

2  Tasker  v.  Shepherd,  6  H.  &  N.  575.     Taunt.  580. 

8  Campanari  t'.  Woodburn,  15  C.  B.         ^  Touchst.     178,    482;    Wms.     Exrs. 

400;   VVms.  Exrs.  1727.  1726;    Williams  t.  Burrell,  i  C.  B.  402. 

*  Schoul.  Dom.  Rel.  §  473.  So  a  covenant  to  maititain  an  appren- 

441 


§   3^9  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  368.  The  same  Subject ;  Distinction  between  Oifta  and 
Contracts.  —  So,  too,  an  obligation  enforceable  after  one's 
death  against  his  estate,  must  have  been  founded  in  a  con- 
tract consideration.  Gifts  to  take  effect  after  death  stand 
upon  the  footing  of  legacies  or  gifts  causa  mortis,  and  if  valid 
at  all,  must  be  referred  to  the  peculiar  rules  which  apply 
thereto.^  As  a  court  of  equity  will  not  inter  vivos  compel 
any  one  to  complete  his  gift,  neither  will  it  compel  one's  exec- 
utor or  administrator  to  complete  it  on  his  death.  Hencfe, 
an  act  of  pure  bounty,  not  fully  performed  by  the  decedent 
during  his  lifetime,  cannot  be  specifically  enforced  against  the 
estate  or  its  representative.^  And  hence,  too,  although  a 
promise  by  the  decedent  of  recompense  for  services  rendered 
may  be  sued  upon,  even  though  the  promised  recompense 
was  to  have  been  by  way  of  a  legacy  which  the  decedent  did 
not  in  fact  leave  to  the  plaintiff,  no  mere  expectation  of  a 
legacy,  gift  or  gratuity,  can  furnish  ground  for  bringing  a  suit 
slgainst  the  estate.  Nor  can  the  representative  be  sued  upon 
any  mere  writing,  though  under  seal,  which  purports  to  make 
a  voluntary  gift  after  one's  decease,  out  of  his  estate;  for  this 
would  contravene  the  policy  of  our  Statutes  of  wills.^ 

§  369.  The  same  Subject;  Form  of  Action  sometimes  Material 
in  this  Connection.  —  The  form  of  action  appears  sometimes 
material  in  connection  with  suits  against  the  representative 
touching  the  obligation  of  the  decedent.  But  modern  prac- 
tice, both  in  England  and  the  United  States,  generally 
abolishes  a  distinction  formerly  taken  as  to  "wager  of  law," 
so  that  the  action  of  debt  on  simple  contract  is  maintainable, 
as  well  whether  the  contract  was  made  by  the  decedent  or  by 

lice  is  held  to  continue  in  force  after  Wms.  Exrs.   1768,  and  Perkins's   note, 

the  master's  death,  while  a  covenant  to  A    promise    that    one's    representative 

instruct   him    does   not.      Wms.    Exrs.  shall  pay  A.  ;^20,  in  consideration  that 

1765;    I  Salk.  66.  A.  remains  in  his  service  till  his  deaths 

^SeePartV.  as  to  legacies  ;5«/rrt,§  219.  is  enforceable  within   the   rule   of  the 

^  Hooper  z/.  Goodwin,  i  Swanst.  485;  text.     Powell  v.  Graham,  7  Taunt.  580. 

Callaghan  v.   Callaghan,   8  CI.   &  Fin.  Cf.  Cro.  Eliz.  382;    Wms.    Exrs.    1728. 

374;    Dillon    V.  Coppin,  4  My.   &   Cr.  See  also  Bell  v.  Hewitt,  24  Ind.  280. 

637.     And  see  Shurtleff  v.  Francis,  118  ^  Baxter  v.  Gray,  3  M.  &  G.  771  :   Le 

Mass.   154;   Stone  v.  Gerrish,  I   Allen,  Sage  v.  Coussmaker,  i  Esp.  188;   Nield 

175;   Schoul.  Dom.  Rel.  3d  ed.  §  274;  v.  Smith,  14  Ves.  491. 

442 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  3/0 

his  personal  representative.^  To  revive  an  action  aj^ainst 
executor  or  administrator  the  requirements  of  the  local  stat- 
ute must  be  followed.'' 

§  370.  Survival  of  Actions  against  Deceased  founded  in  Tort^ 
not  permitted  at  Common  Law.  —  Where,  on  the  other  hand, 
the  cause  of  action  against  the  decedent  was  founded  in  tort, 
and  not  contract,  it  was  the  common-law  rule  that  the  right 
of  action  to  recover  damages  died  with  the  person  who  com- 
mitted the  wrong.  Consequently,  wherever  an  injury  had 
been  done  to  the  person  or  property  of  another  for  which 
damages  only  could  be  recovered,  as  for  one's  wilful  miscon- 
duct or  negligence,  the  death  of  the  wrong-doer  before  judg- 
ment precluded  legal  redress.  Thus,  one's  executor  or 
administrator  could  not  be  sued  for  false  impusonment, 
assault  and  battery,  slander,  libel,  malicious  prosecution,  or 
any  other  personal  injury  inflicted  by  the  decedent,  whether 
mental  or  physical.^  Nor  for  trespass,  trover,  or  deceit ;  nor 
for  causing  damage  by  a  nuisance,  diverting  a  water-course, 
or  obstructing  lights.  ■* 

The  right  of  action  for  default  and  embezzlement,  in  trusts 
public  or  private,  died  upon  the  same  principle  with  the 
offender.^  So,  if  the  executor  or  administrator  himself  com- 
mitted waste  and  died,  it  was  treated  as  a  personal  tort  which 
died  with  his  own  person,  saving  his  estate  harmless  ;  ^  though 
equity  prescribed  a  different  rule ; '  while,  upon  one's  official 

'  Wms.  Exrs.   1930,  1931;   9  Co.  87  The  question  of  assets  or  no  assets  can- 

b;  Riddell  v.  Sutton,  5  Bing.  206;  stat.  not  be  raised  where  a  representative  asks 

3  &  4  Wm.  IV.  c.  42.     Other  actions  to  be  made  the  party  defendant.   91  N. 

were  substituted  at  common  law  in  the  C.  495. 

stead  of  those  which   did  not   survive  ^  Wms.  Exrs.  1728;  i  Saund.  216  a; 

under  the  rule  of  the  text.     Cowp.  375,  Waters  v.  Nettleton,  5  Cush.  544;  More 

by  Lord  Mansfield.  And  see  Thomp-  v.  Bennett,  65  Barb.  338;  87  N.  C.  35I. 
son  V.  French,  10  Yerg.  452.  *  Perry  z/.  Wilson,  7  Mass.  395;  Haw- 

"^  Segars  v.  Segars,  76  Me.   96.     See  kins  v.  Glass,  i  Bibb,  246;  Nicholson  v. 

Mississippi  code  cited  62  Miss.   19,  as  Elton,  13  .S.  &  R.  415;  Jarvis  v.  Rogers, 

to  reviving  a  suit  by  sci.fa.  for  a  general  15  Mass.  398;  Wms.  Exrs.  1728. 
final  judgment.     New  York  code  per-  ^  Franklin  v.  Low,  I  Johns.  396. 

mits  a   continuance  and  revival   of  an  ^  i  Leon.  24I;    X  Ventr.  292;   Wm* 

action      which     legally    survives    even  Exrs.  1729. 

though  both  plaintiff  and  defendant  die.  ''  Price  v.  Morgan,  2  Chanc.  Cas.  217; 

Holsman   v.  St.  John,  90  N.  Y.  461.  Wms.  Exrs.  1739.    Equity  charges  tru»- 

443 


§  37 1  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

bond,  moreover,  suit  might  perhaps  lie  as  upon  a  contract 
liability.! 

Liability  on  a  penal  statute  or  under  a  subpoena  dies  with 
the  person  at  common  law.^  Also,  the  liability  of  a  marshal, 
sheriff,  or  jailer,  for  permitting  an  escape,  or  for  other  mal- 
feasance or  neglect  of  himself  or  his  deputies.^  Also  liability 
to  prosecution  for  violating  some  municipal  ordinance.* 

But  if  judgment  had  been  recovered  against  the  person 
committing  the  wrong,  during  his  life,  the  judgment  debt 
would  have  bound  the  estate ;  for  as  to  the  foundation  of  that 
judgment,  whether  in  a  cause  of  action  which  survives  or 
not,  there  is  no  essential  difference ;  the  judgment  itself 
creating  a  new  and  distinct  obligation  of  the  contract  kind.° 

§  ^yi.  The  same  Subject;  -whether  Replevin  can  be  main- 
tained against  the  Representative. —  In  replevin,  if  the  plaintiff 
died,  the  cause  of  action  appears  to  have  survived  at  the  com- 
mon law ;  but,  if  the  defendant  died,  the  right  of  action 
against  him  died  also  ;  so  that,  although  the  personal  repre- 
sentatives of  a  party  from  whom  goods  or  chattels  had  been 
tortiously  taken  in  his  lifetime  might  bring  replevin,  no  such 
action  could  be  maintained  against  the  personal  representa- 
tives of  one  who,  in  his  lifetime,  had  tortiously  possessed 
himself  of  goods,  unless  the  property  came  into  the  possession 
of  the  personal  representatives,  and  they  refused  to  restore  it.** 

tees  and  their  representatives  with  the  cept   for   special    damage   to  property, 

consequences  of  a  breach  of  trust.     lb.  Finlay  t'.  Chirney,  2oQ.  B.D.494;  Chase 

1  Supra,  §  366.  V.  Fitz,   132  Mass.  359.     Divorce  suits 

2  Wms.  Exrs.  1728;  Wentw.  Off  Ex.  abate  by  a  defendant's  death.  Mc- 
255,  14th  ed.;  Schreiber  v.  Sharpless,  Curley  z^.  McCurley,  60  Md.  185.  Also 
1 10  U.  S.  76.  an  action  against  a  trustee  or  an  officer 

2  Ld.  Raym.  973;   Hambly  v.  Trott,  of  a   corporation  to  recover   a   statute 

I  Cowp.  375;  Wms.  Exrs.  1729;  Martin  penahy.     Stokes  v.   Stickney,  96  N.  Y. 

V.  Bradley,   i   Caines,    124;    People   v.  323;    Brackett  v,  Griswold,   103  N.  Y. 

Gil>bs,  9  Wend.  29.    See  Lynnz^.  Sisk,  9  425.     Also  an  action  for  enticing  away 

B.  Monr.  135.  a  servant.     Huff  v.   Watkins,  20  S.  C. 

*  CarroUton   v.    Rhomberg,  78  Mo.  477.     Also  action  against  a  bank  officer 

547 ;   §§    279-283  ;    Diversey  v.  Smith,  for     negligent     mismanagement.         23 

103  111.  378.     Malpractice  suits  do  not  Blatch.  457.      The   death   of  a  lunatic 

survive    the    defendant.       Jenkins    v.  abates  a  suit  against  him.     80  Va.  873. 
French,     58     N.    H.    532;     Boor     v.         ^  Wms.   Exrs.    1740;     Dyer,   322   a; 

Lowrey,  103  Ind.  468.     Nor  an  action  supra,  §  366. 
for  breach  of  promise  of  marriage  ex-         <•  In  replevin,  the  plaintiffs  ground  of 

444 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  373 

§  372.  The  same  Subject:  whether  other  Remedies  might  be 
applied  because  of  the  Tort.  —  While  actions  declaring  as  for 
a  tort  committed  by  the  defendant  were  thus  defeated  or 
abated  by  such  party's  death,  other  remedies  against  his 
estate  might  sometimes  avail  for  the  injured  person's  redress, 
provided  the  form  of  declaration  were  different.  As,  per- 
haps, in  bringing  detinue  to  recover  chattels  /'//  specie;^  or 
where  the  form  of  action  was  ex  contractu ;  ^  and,  generally, 
if  the  wrongful  act  might  be  laid  to  the  executor  or  adminis- 
trator himself,  or  else,  waiving  the  tort,  an  action  might  be 
brought  as  upon  an  implied  contract,  or  for  money  had  and 
received.^  As  in  various  other  instances,  the  common  law, 
while  insisting  upon  a  legal  maxim  which,  rigidly  applied, 
might  work  injustice,  favored  artifice  and  the  dexterous  appli- 
cation of  forms  for  correcting  the  worst  mischief;  so  that  its 
courts  might  render  a  righteous  judgment  while  maintaining 
the  severe  aspect. 

§  3 73'  Modern  Statutes  enlarge  the  Survival  of  Actions; 
against  Decedent.  —  As,  however,  with  actions  on  behalf  of  a 
decedent's  estate,^  so  where  the  decedent  was  defendant, 
modern  legislation,  both  in  England  and  the  United  States,, 
favors  an  enlargement  of  the  causes  where  survival  shall  be 
allowed ;  and  often,  too,  by  the  same  enactment.  Thus, 
under  the  English  stat.  3  &  4  Wm.  IV.  c.  42,  an  action  of 


action  is  his  property,  either  general  or  ^  See  supra,  §  366.  As  to  suing  for 
special,  and  a  tortious  violation  of  his  breach  of  promise,  see  .Shuler  v.  Mill- 
right  of  property  by  the  defendant,  saps,  71  N.  C.  297;  2  Chitty  Contr. 
Parsons,  C.  J.,  in  Mellen  v.  Baldwin,  4  (nth  Am.  ed.)  1443;  §  37°'  no'*-'- 
Mass.  481 ;  Lahey  v.  Brady,  i  Daly,  *  As  in  assumpsit.  iCowp.  375;  Col- 
443;  Potter  V.  Van  Vranken,  36  N.  Y.  len  v.  Wright,  7  El.  &  Bl.  647.  Or 
619,  627, /ifr  Davies,  C.  J.  Wms.  Exrs.  action  for  use  and  occup.ition.  lb. 
1730,  appears  to  state  this  point  differ-  And  see,  as  to  money  f<>r  which  a 
ently.  sheriff  was  liable  to  account,  Perkinson 
1  Wms.  Exrs.  1730;  Le  Mason  v.  v.  Gilford,  Cro.  Car.  539;  Wms.  Exrs. 
Dixon,  W.Jones,  173;  3  Dev.  L.  303;  1730,  1731;  United  States  t'.  Daniel,  6 
I  Leigh,  86.  Detinue,  unlike  replevin.  How.  (U.  S.)  11.  In  general,  as  to 
is  for  detaining  unlawfully  rather  than  waiving  the  tort  and  all  special  damages, 
tortiously  acquiring.  But  see  Jones  v.  and  suing  as  for  the  proceeds,  etc.,  see 
Littlefield,  3  Yerg.  133,  to  the  effect  that  i  Chitty  PI.  (i6th  Am.  ed.)  112  Per- 
detinue  cannot  revive  as  for  an  act  com-  kins's  note, 
mitted  by  the  decedent  himself.  *  Supra,  §  282. 

445 


§  374  EXECUTORS    AND    ADMINISTRATORS.  [?ART  IV. 

trespass  is  maintainable  against  the  executor  or  administra- 
tor of  any  person  deceased,  for  an  injury  to  property,  real  or 
personal,  committed  within  six  months  before  his  death ; 
provided  the  action  be  brought  not  later  than  six  months 
after  the  representative  shall  have  taken  administration.^ 
And  in  many  American  States  the  survival  of  actions  for 
torts  of  a  decedent  is  still  more  widely  extended,  so  as  not 
only  to  embrace  causes  grounded  in  an  injury  to  one's  per- 
son or  character,  but  to  permit  of  replevin  and  various  other 
forms  of  action  without  particular  limitation  as  to  the  time 
when  the  offence  was  committed.^  But,  whether  directly 
or  by  implication,  such  statutes  appear  to  conform  to  the 
general  policy  which  accords  to  executors  and  administrators, 
not  themselves  in  default,  a  special  and  brief  period  of  limita- 
tions, in  order  that  they  may  settle  up  the  estate  expeditiously 
and  upon  a  full  knowledge  of  the  claims  for  which  officially 
they  shall  be  held  answerable.^  A  cause  of  action  for  injury 
to  property  rights  may  thus  stand  on  a  good  footing,  while 
that  for  injury  to  the  person  dies  with  the  wrong-doer. 

§  374.    Survival  of  actions  for  Rent  or  Damage  to  Real  Estate. 

—  Rent  due  from  a  decedent  may  be  recovered,  whether  the 
remedy  be  by  action  for  use  and  occupation,  or,  perhaps  (in 
case  of  a  written  lease),  as  under  the  stipulations  of  a  sealed 
contract.*     But  recovery  in  ejectment  raised  technical  diffi- 

*  Wms.  Exrs.  1734;  Powell  v.  Rees,  survived  if  commenced   by  or    against 

7  Ad.  &  El.  426.  the  original  party  in  his  lifetime  may  be 

2  Deceit,  malpractice,  etc.,  are  thus  in  commenced  and  prosecuted  by  and 
some  States  made  a  good  cause  of  against  his  executors  and  administrators, 
action  notwithstanding  the  offender's  Mass.  Pub.  Stats,  c.  166,  §  i;  6  Jones, 
death.  See  the  special  causes  (embrac-  60.  Action  for  infringement  of  a  pal- 
ing bodily  injuries)  enumerated  in  Mass.  ent  survives.  Atterliury  v.  Gill,  2  Flip. 
Pub.  Stats,  c.  165,  §  i;  Netlleton  v.  239;  28  Fed.  R.  460.  Actions  fur  ille- 
Dinehart,  5  Cash.  543.  And  see,  also,  gal  arrest  or  false  imprisonment  do 
Shafer  v.  Grimes,  23  Iowa,  550;  i  Chitty  not  include  actions  for  malicious  prose- 
Pi.  58,  note;  supra,  §  282;  Haight  v.  cution.  Clark  v.  Carroll.  59  Md.  180. 
Hoyt,  19  N.  Y.  464.  The  reader  is  But  a  cause  of  action  for  conspiracy  to 
referred  to  the  statutes  of  the  respective  cheat  and  defraud  may  survive  as  af- 
States  on  this  subject.  fecting    property    rights.     Rrackett    v. 

Damages  actually  sustained,  and  not  Griswold,  103  N.  Y.  425. 
exemplary  or  vindictive  damages  may  ^  See  Part.  V.,  c.  i,  as  to  payment  of 

be  recovered.     Mass.  Pub.  Stats,  c.  166.  debts. 

As  to  the  form  of  judgment  in  replevin,  *  Turner   v.   Cameron's   Co.,    5    Ex. 

see  ib.     All  actions  which  would  have  932;  Wms.  Exrs.  1731. 

446 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  375 

culties,  which  have  now  become  of  little  practical  conse- 
quence.^ At  the  common  law,  an  action  of  trespass  for 
mesne  profits  while  one  was  wrongfully  in  possession  could 
not  be  brought  against  his  executor  or  administrator  ;2  though 
fL  bill  in  equity  for  an  account  of  mesne  profits  was  under 
special  circumstances  sustained.^ 

Waste,  moreover,  did  not  lie  against  the  representative  at 
the  common  law ;  this  being  a  tort  which  died  with  the  per- 
son who  committed  it.  Yet,  upon  the  decedent's  tort,  as  for 
instance  in  cutting  down  trees  or  digging  coal,  there  might 
accrue  the  less  remunerative  right  of  action  against  the 
representative,  as  for  money  received  by  selling  it.*  Or  a 
bill  in  equity  might  lie  for  account.^  So,  if  a  man  com- 
mitted equitable  waste  and  died,  as  where  a  tenant  for  life 
abused  his  power  by  cutting  down  ornamental  trees,  equity 
asserted  jurisdiction  to  make  his  personal  representatives 
accountable  for  the  produce  thereof.^ 

The  executors  and  administrators  of  a  tenant  for  years, 
however,  are  punishable  for  waste  committed  by  themselves 
while  in  possession  of  the  land,  as  other  persons  are.^ 

§  375-  Liability  of  Representative  on  Covenants  of  his  Dece- 
dent; Covenants  under  Lease,  etc.  —  Wherever  the  decedent 
was  bound  by  a  covenant  whose  performance  was  not  per- 
sonal to  himself  and  terminable  by  his  death,  his  executor 
or  administrator  shall  also  be  bound  by  it,  even  thouglj 
not  named  in  the  deed.  And  whether  the  covenant  was 
broken   during  the   life  of   the  decedent    or   after,  so   long 

1  Wms.  Exrs.  1731 ;  Pulteney  z^.  War-  Exrs.  1732;  Powell  v.  Rees,  7  Ad.  & 
ren,  6  Ves.  86;  Birch  v.  Wright,  i  T.  El.  426;  Moore  z/.Townshend,  33  N.  J. 
R-  378;  Jones  V.  Carter,  15  M.  &  W.  284.  The  foundation  of  this  action  ap- 
718.  An  action  of  ejectment  abates  at  pears  to  be  the  benefit  the  personal 
common  law  on  the  death  of  the  sole  estate  of  the  decedent  has  derived  in 
defendant.  Farrall  v.  Shea,  66  Wis.  consequence  of  the  waste.  lb.;  Taylor 
561.     See  Part  VI.  Landl.  &  Ten.  §  689. 

2  Pulteney    v.    Warren,  6   Ves.    86;  ^  ,  p  Wms.  406. 

Wms.  Exrs.  1731;    Harker  z/.  Whitaker,  *  Lansdowne  t'.  Lansdowne,  i  Madd. 

5  Watts,  474.  ■  116;    Wms.  Exrs.  1732,  1733. 

8  lb.;    Caton  v.  Coles,  L.  R.   i   Eq.  '  Tavlor  I.andl.  &  Ten.  §  689.     Kor 

581  statute  changes  on  this  point  see  Taylor 

*  2  Saund.  252;   Cowp.  376;   Wms.  Landl.  &  1  tn.  §  o8y. 

447 


§  375  EXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 

as  it  was  a  continuing  and  express  covenant,  and  the  appro- 
priate rule  of  limitations  leaves  the  estate  still  unsettled  in 
the  representative's  hands,  the  latter  is  answerable  in  damages 
for  its  breach.^  For  the  benefits  of  a  covenant  and  its  bur- 
dens are  transmitted  to  the  representative  together ;  not, 
however,  where  it  is  clear  that  the  covenant  applied  only  to 
the  covenantor  personally  and  was  limited  to  his  own  life- 
time.2  Upon  all  the  covenants  by  the  decedent  broken  dur- 
ing his  lifetime,  even  though  they  were  personal  to  the  dece- 
dent in  liability,  the  personal  representative  is,  of  course, 
answerable  for  the  breach  out  of  the  assets.^ 

Although  a  covenant  in  a  lease  should  be  of  a  nature  to 
run  with  the  land,  so  as  to  make  the  assignee  thereof  liable 
for  any  breach  committed  after  its  assignment,  and  although 
the  lessor  has  accepted  the  assignee  as  his  tenant,  yet  a 
concurrent  liability  on  the  covenant  may,  nevertheless, 
continue,  so  as  to  charge  the  original  lessee  and  his  execu- 
tor or  administrator.'*  And  hence,  the  personal  represen- 
tative who  sells  the  lease  may  well  require  of  the  purchaser 
a  covenant  for  indemnity  against  the  payment  of  rent  and 
performance  of  covenants  ;  though,  independently  thereof, 
he  will  have  his  remedies  over  against  his  assignee  to  that 
intent.^ 

If  in  possession  of  premises  under  a  covenant,  the  execu- 
tor or  administrator  may  be  sued  in  covenant  as  assignee, 
for  he  is  assignee  in  law  of  the  interest  of  the  cove- 
nantor.^     But,  for  a  breach  committed  in  the  time  of  the 

I3  Mod.   326;    Wells   V.   Betts,   10  3  Wentw.  Off.  Ex.251;   Wms.  Exrs. 

East,  316;   Hovey  v.  Newton,  11  Pick.  1750. 

421;  Wms.  Exrs.  1750;  Taylor  Landl.  &  *  Wms.  Exrs.  1750;  Taylor  Landl.  & 

Ten.  §  669.     Thus,  damages  for  breach  Ten.   §    669;    Greenleaf  v.   Allen,   127 

of  a  covenant  for  quiet  enjoyment  un-  Mass.  248.     Aliler,  where  the  decedent 

der  a  lease   accruing   both  before  and  himself  was  assignee  of  an  original  les- 

after  the  death  of  the  covenantor  may  see;   for  here  all  future   liability  may  be 

be  recovered  in  one  action  against  his  discharged  if  the  representative  assigns 

personal  representative.     11  Pick.  421.  over,  though  to  a  pauper.     Rowley  v. 

The  rule  is  stated  differently  as  to  mere  Adams,  4  My.  &  Cr.  534. 

covenants  in  law,  not  express.     Wms.  ^  Wilkinsz/.  Fry,  i  Meriv.  265;  Moule 

Exrs.  1752.  ij.  Garrett,  L.  R.  5  Ex.  132;  Wms.  Exrs. 

2  Coffin  V.  Talman,  8  N.  Y.  465  ;  Tay-  1 752. 

lor  Landl.  &  Ten.  §  460.  As,  e.g.,  a  ^  I  Ld.  Raym.  453;  Montague  v. 
covenant  to  repair.     lb. 

4/18 


CHAP.  V.J      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  376 

decedent,  the  judgment  must  be  out  of  hi.s  assets,  and  the 
representative  should  be  sued  in  that  character.^  Leases 
pass  to  one's  executor  or  administrator  as  chattels  real  or 
personal  assets,  with  all  incidental  benefits  and  burdens ; 
and  the  rule  is  general,  that  an  assignment  of  the  lease 
will  not,  of  itself,  affect  the  liability  of  the  lessee  or  his 
personal  representative  to  the  lessor  upon  the  covenants 
therein  contained ;  ^  though  an  assignment  or  surrender 
with  the  lessor's  consent,  and  duly  accepted  by  him,  may 
practically  terminate  the  original  lessee's  responsibility  as 
by  mutual  consent.^ 

§    376.    Liability    of    the    Personal    Representative    for    Rent. 

—  The  personal  representative's  liability  for  rent  follows, 
so  far  as  may  be,  the  foregoing  doctrines.  For  a  promise 
under  seal  to  pay  rent  constitutes  a  covenant,  and  justifies 
for  its  breach  an  action  of  covenant ;  *  though  there  may 
be  a  tenancy  without  a  lease,  and  of  a  more  precarious 
nature.  Assignment  of  a  lease  by  the  lessee  during  his 
life,  or  by  his  personal  representative  after  his  death,  can- 
not of  itself  avail  to  clear  the  estate  of  responsibility  for 
rent ;  though  an  assignment  or  underlease,  not  contrary  to 
express  restrictions  of  the  original  lease,  may  replenish  the 
assets  in  this  respect.^  But  a  surrender  of  the  lease  by  the 
executor  or  administrator  being  absolutely  accepted  by  the 
lessor,  without  any  reservation  of  a  right  to  sue  the  rep- 
resentative, or  to  prove  against  the  decedent's  estate  in 
case  of  any  possible  loss  occasioned  by  letting  the  premises 
at  a  reduced  rent,  the  lease  terminates,  and  all  liability  upon 
the  covenants  thereof,  and  no  further  rent  need  be  paid.*^ 
But,  as  respects  a  liability  for   rent    more    generally,  the 

Smith,  13  Mass.  405;  Taylor  Landl.  &  of  the  lessee,  may  be  recovered  in  one 

Ten.  §  669;    16  Hun,  177.  action  against  his  personal  representa- 

^  lb,  tive.    Greenleaf  f.  Allen,  127  Mass.  248. 

2  Dwight  V.  Mudge,  12  Gray,  23.  *  Taylor  Landl.  &  Ten.  §§  402-413; 

*  Deaiie  z'.  Caldwell,  127  Mass.  242.  Smith,   ib.    115-119;     i    Schoul.    Pers. 
See  as  to  assigning  a  lease,  tic,  supra.  Prop.  60;    3  Mod.  325;   supra,  §  353. 
§353.  ''Randall    v.   Rich,    11    Mass.   494; 

*  Damages  for  breaches  of  a  covenant  Deane  v.  Caldwell,  127  Mass.  242. 
to  pay  rent,  before  and  after  the  death 

449 


§  3/6  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

executor  or  administrator  is  chargeable  with  rent  in  arrear 
at  the  time  of  his  decedent's  death.^  The  action  of  debt 
lay  at  common  law  for  the  rent  of  lands  demised,  whether 
for  life  or  for  years  or  at  will ;  the  right  to  sue  being  founded 
either  on  the  contract  implied  from  privity  of  estate  or  on 
the  express  contract  of  demise.  But  the  right  of  action 
on  the  contract  thus  implied  is  transferred  with  the  estate ; 
whereas  the  lessee  under  an  express  contract  cannot  dis- 
charge himself  from  liability  by  his  own  act.^  Hence,  as 
long  as  the  lease  continues,  and  as  far  as  he  has  assets,  an 
executor  is  held  liable,  in  debt  as  well  as  covenant,  for 
accruing  rent,  and  an  assignment  of  the  term  by  himself 
or  his  decedent  affords,  of  itself,  no  immunity.^  If,  how- 
ever, after  such  assignment  of  the  lease,  the  lessor  has 
accepted  rent  from  the  assignee,  and  recognizes  the  latter 
as  his  own  tenant,  debt  no  longer  lies  against  the  lessee, 
or  his  executor  or  administrator,  as  to  rent  subsequently 
accruing ;  though  on  an  express  stipulation  for  the  payment 
of  rent  during  the  continuance  of  the  lease,  an  action  of 
covenant  may,  as  we  have  seen,  be  brought.^ 

Executors  and  administrators,  though  considered  assignees 
in  law  of  a  term  demised,  may  waive  or  incur  an  individual 
liability  by  their  own  acts.  Thus,  if  the  executor  of  a  tenant 
from  year  to  year  omits  to  terminate  the  tenancy,  and  con- 
tinues to  occupy  the  premises  from  year  to  year,  he  becomes 
liable  personally,  as  well  as  in  his  representative  capacity,  for 
the  rent  accruing  during  his  occupancy.^  Executors  and  ad- 
ministrators   may  not,  however,  be    so    charged    with    equal 

1  Shepherd  Touch.  178,483;  Taylor  assigned,  the  landlord,  under  such  cir- 
Landl.  &  Ten.  §  459.  cumstances,  may  sue  the  lessee  or  as- 

2  Howland  v.  Coffin,  12  Pick.  105.  signee,  or  both  jointly,  at  his  option. 
Debt  against  the  representative,  whether  Taylor  Landl.  &  Ten.  §  620. 

to  be  brought  as  for  debet  and  detinet  *  Taylor  Landl.  &  Ten.  §  620;    Wms. 

or   for  detinet  only,  see  Taylor  Landl.  Exrs.  1752;  Pitcher  z'.  Tovey,  4  Mod.  71. 

&  Ten.  §  626.  6  Wollaston  v.  Hakewill,   3  M.  &  G. 

3  3  Mod.  325;  Wms.  Exrs.  1753,  297;  Taylor  Landl.  &  Ten.  §  459.  For, 
1759;  2  Saund.  181;  i  Lev.  127.  As  if  the  representative  continues  to  occupy, 
to  the  representative's  liability  for  a  and  the  landlord  abstains  from  giving 
ground  rent,  cf.  Van  Rensselaer  v.  notice  to  quit,  an  implied  promise  to 
Platner,  2  Johns.  Cas.  17;  Quain's  Ap-  abide  by  the  original  terms  is  inferable, 
peal,  22  Penn.  St.  510.     If  the  lease  be  Wms.  Exrs.  1 761. 

450 


CHAP,   v.]     LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  376 

facility ;  for,  it  appears,  that  while  an  executor  will  be  con- 
sidered assignee  of  a  term  demised  to  his  testator  from  the 
date  of  probate  and  qualification,  an  administrator  only 
assumes  such  liabilities  when  he  takes  possession  of  the 
demised  premises,  or  by  other  positive  acts  evinces  his  inten- 
tion to  become  assignee  in  effect.^  But  the  personal  repre- 
sentative cannot  be  charged  personally  as  assignee,  where  he 
waives  or  surrenders  the  term.  And  this  he  should  do  in 
prudence,  if  the  tenancy  is  unprofitable  or  threatens  to  in- 
volve him  beyond  the  assets  at  his  disposal.  For,  although 
an  executor  or  administrator  may  be  liable  to  respond  to  the 
covenants  of  a  lease  from  the  assets,  he  may  at  any  time  dis- 
charge himself  from  individual  liability,  by  himself  assigning 
over,  if  the  landlord  will  not  accept  his  surrender  of  the 
premises ;  since  like  every  other  assignee,  he  is  only  liable 
personally  for  breaches  of  covenant  happening  during  his 
own  time,  and  not  for  those  of  his  predecessors  in  enjoyment 
of  the  estate.^  But,  if  he  underlets,  the  occupation  of  the 
under-tenant  is  his  occupation,  and  he  becomes  personally 
liable  as  assisrnee  of  the  lease.^ 


1  Pugsley   V.    Aikin,   II   N.  Y.  494;  well,  2  Ir.  Law  Rep.  384;   Kearsley  v. 

Inches  v.  Dickinson,  2  Allen,  71.   Even  Oxley,  2  H.  &C.  896. 
an  unqualified  person  may  by  his  entry         -  Remnant   v.    Bremridge,   8   Taunt. 

incur  the  responsibility  of  an  executor  191 ;  Wms.  Exrs.  1758;  i  Kay&  J.  575. 

</<?  son  tort.      Williams  v.  Heales,  L.  R.  Assignment  over,  even  to  a  pauper,  will 

I  C.  P.   177;    supra.   Ft.   IL,  c.  8.    Tin-  discharge  him  as  assignee;  and  in  some 

dal,  C.  J.,  in  Wollaston  v.   Hakewill,  3  cases,  if  the  landlord  will  not  accept  a 

M.  &  G.  297,  said,  that,  as  to  the  argu-  surrender  of  the  lease,   it   is  the  repre- 

ment  that  the  executor,  by  being  charged  sentative's  duty   to   thus   prudently   rid 

generally  as   assignee,    becomes  thereby  himself  of  the  responsibility.     I  B.  &  P. 

liable  de  bonis  propriis,  the  answer  is,  21;   4  My.  &  Cr.  1534. 
that  he  may,  by  proper  pleading,  dis-         ^  Bull  J".  Sibbs,  6  T.   R.  327;   Carter 

charge    himself   from    personal   liability  v.    Hammett,    18    Barb.    608;     Taylor 

by  alleging  that  he  is  not  otherwise  as-  Landl.  &  Ten.  §  461.    The  estate  of  the 

signee   than    by  being   executor   of  the  lessee  remains  liable    for    rent    in    due 

lessee,  and  that  he  has  never  entered  or  course  of  administration  if  the  landlord 

taken   possession  of  the  demised   prem-  refuses   to   enter.      Martin   v.    Black,   9 

ises  ;   and  from  all  liability  as  executor,  Paige,   641;    Copeland   v.    Stephens,    i 

by  alleging  that  the  teim  is  of  no  value,  B.   &  A.  593.      As  to  declaring  against 

and  that   he   has   no   assets.     In   other  executoror  administrator  as  the  assignee, 

words,  he  should  not  take  issue  on  the  see  Taylor  Landl.  &  Ten.  §  461 ;    Wms. 

point  whether  he  is  assignee  or  not,   for  Exrs.    1756.     After  entry  the  represen- 

evidence  that  he  is  executor  proves  the  tative  is  charged  for  a  breach  either  in 

affirmative.      And  see  Green  v.   Listo-  his    representative  character   or  as  as- 

45  T 


§  37^  EXECUTORS    AXn    ADMINISTRATORS.  [PART  IV. 

§  377-  liiability  of  Representative  ou  Covenants  concerning 
Real  Estate,  etc. — It  is  laid  down  that  if  the  purchaser  of  real 
estate  dies  without  having  paid  down  the  purchase-money, 
his  heir-at-law  or  devisee  will  be  entitled  to  have  the  estate 
paid  for  by  the  executor  or  administrator,  provided  the 
personal  assets  suffice.^  And  should  the  personal  assets 
prove  insufficient  in  such  cases,  so  that  the  purchase  cannot 
be  carried  out,  the  heir  or  devisee,  as  it  appears,  has  an 
equity  to  require  what  personal  assets  may  be  obtained  to  be 
laid  out  in  land  for  his  benefit  ;  ^  not,  however,  we  apprehend, 
to  the  injury  of  creditors  of  the  decedent,  but  only  so  far  as 
to  establish  him,  where  he  was  rightfully  entitled  to  stand, 
with  respect  to  the  representative  himself  and  the  charac- 
ter of  the  decedent's  property.  If  the  purchase  contract,  on 
the  other  hand,  was  not,  or  should  not  have  been  completed, 
no  equity  attaches  for  the  purpose  of  effecting  a  conversion 
of  the  property.^  The  rights,  as  between  a  personal  repre- 
sentative and  the  heir  of  a  deceased  vendor,  should  be  corre- 
spondingly treated.* 

§  378.  Liability  of  Representative  on  Joint  or  Several,  etc., 
Contracts  of  Decedent.  —  At  common  law,  where  there  is  a 
joint  obligation  or  contract  on  one  part,  and  one  of  the  joint 
contractors  or  obligors  dies,  death  puts  an  end  to  his  liability, 

signee.     lb.     The  representative's  per-  Sm.   575;    stat.  22  &    23   Vict.   c.    35, 

sonal  liability  for  rent  shall  not  exceed  §  27. 

the  value  of  the  demised  premises ;  Specific  performance  on  a  covenant 
though  it  is  otherwise  witt  respect  of  for  renewal  has  been  enforced  against 
suing  him  as  assignee  on  a  covenant  to  an  executor  who  had  entered  and  ad- 
repair.  I  Bing.  N.  C.  89;  Taylor  Landl.  mitted  assets.  Stephens  v.  Hotham,  i 
&  Ten.  §  461;  Sleake  v.  Newman,  12  Kay  &  J.  571.  But  see  Philips  v. 
C.  B.  N.  s.  116.  The  rules  and  forms  Everard,  5  Sim.  102. 
of  pleading  in  such  actions  were  quite  *  Wms.  Exrs.  1762;  I  Sugd.  V.  &  P. 
technical  and  formal.  Modern  statute  180;  Whiltaker  v.  Whittaker,  4  Bro. 
provisions  are  found  relating  to  this  C.  C.  31 ;  Broome  z*.  Monck,  lO  Ves.  597. 
subject.     Thus,  in   English  practice,  an  -  lb. 

executor   may  sell    the    leaseholds    and  ^  Broome  v.   Monck,    10     Ves.   597; 

assign  them  to  the  purchaser,  and  after-  Curre  v.  Bowyer,  5  Beav.  6.     The  court 

wards,   of  his   own  authority,  distribute  cannot    speculate    upon    what    the    de- 

the  assets  without  making  provisions  for  ceased  party  would  or  would  not  have 

future  breach  of  covenant  in  the  lease,  done.     lb. 

and  without  being  subject  to  any  further  *  Wms.  Exrs.   1763;    I  Sugd.  V.  &  P. 

liability.     Dobson  v.  Samuel,  i  Dr.  &  180. 

452 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  379 

leaving  the  survivor  or  survivors  thereto  alone  suable.'  But, 
on  the  other  hand,  where  the  contract  or  obligation  was 
several,  or  joint  and  several,  the  personal  representative  of  a 
deceased  contractor  or  obligor  may  be  sued  at  law  in  a  sepa- 
rate action ;  not,  however,  jointly  with  the  survivor,  because 
the  latter  is  liable,  as  an  intlixidual,  but  the  former  only  so 
far  as  he  may  have  assets;^  nor  jointly  with  the  representa- 
tive of  another  deceased  obligor  or  contractor,  because  each 
representative  is  answerable  for  assets  of  his  own  decedent 
estate,  neither  more  nor  less,  according  as  they  may  suffice.' 
The  doctrine  of  survivorship,  w4th  its  unequal  rights  and 
liabilities,  is  in  modern  times  treated  with  disfavor ;  and  local 
statutes  are  found  whose  scope  is  to  make  representatives 
liable  to  suit,  on  the  assumption  that  the  contract  or  obliga- 
tion must  have  been  not  strictly  a  joint  one,  but  joint  and  sev- 
eral, by  intendment.^  Equity  affords  relief  correspondingly, 
and  asserts  that  contracts  joint  in  form  may,  nevertheless,  in 
a  correct  interpretation  of  what  the  parties  intended  be  taken 
to  be  joint  and  several,^  though  not  so  as  to  do  violence  to  a 
mutual  intention  plainly  inconsistent  with  that  presumption.^ 

§  379.    Liability  of  Representative  of  Deceased  Partner.  —  A 

partnership  contract  being  joint  in  law,'the  rule  of  our  pre- 
ceding section  applies  to  the  case  of  a  partnership  debt  ;  sub- 
ject, however,  to  like  statute  qualifications,"  and  similar 
remedies  in  equity.  Thus  it  is  well  settled  that  partners 
may  be  sued  in  equity  on  the  assumption  that  the  partner- 
ship debt  is  both  joint  and  several  ;  conformably  to  which 
theory  the  creditor  may  not  only  reach  assets  of  a  deceased 

1  Wins.   Exrs.    174I;    i    Sid.    238;   4         ^  Grymes  w.  Pendleton,  4  Call.  130. 
Mod.  315;   Godson   v.   Good,  6  Taunt.         *  See   Rice  Appellant,  7   Allen,   115; 
594;    I  Chitty  PI.  (i6th  Am.  ed.)  58.         124  Mass.  £19;    Wins.  Exrs.  1740,  Per- 

On    the    death    of  one    of   two   joint  kins's    note;    Masten   v.    Blackwell,   15 

obligees  the  right  of  action  survives  as  N.  Y.  Supr.  313. 

to  the   other.     Hedderly  v.   Downs,  31  ^  Wms.     Exrs.     1746;      Primrose    v. 

Minn.  183;    78  Ala.   162.     The  survivor  Bromley,  i  Atk.  90.     And  see  Thorpe 

of  two  or  more  parties,  plaintiff  or  de-  v.  Jackson,  2  Y.  &  Coll.  533. 

fendant,    has      general      consideration.  "  Sumner    v.    Powell,    2    Meriv.    30; 

Moses  V.  Wi)oster,  115  U.  S.  285.  Rawstone  v,  Parr.  3  Russ.  424. 

2  May  V.  Woodward,  i   Freem.  248;  ''  Sampson  v.  Shaw,  loi  Mass.  145. 
I  Chitty  PI.  58. 

453 


§  380  EXECUTORS    AND    ADMINISTRATORS.  [PAKT  IV. 

partner  in  his  representative's  hands,  should  the  surviving 
partner  fail  to  satisfy  his  claim  in  full,  but,  as  the  latter  de- 
cisions hold,  may  pursue  the  assets  of  a  deceased  partner,  as 
matter  of  preference,  leaving  the  latter's  representatives  and 
the  surviving  partner  to  adjust  their  respective  equities  to- 
gether.^ 

§  380.  Liability  of  Representative  of  Deceased  Stockholder. 
—  The  personal  liability  of  stockholders  is  usually  defined 
specifically  by  the  general  or  special  act  under  which  that 
corporation  was  created.  A  personal  liability  beyortd  the 
value  of  one's  own  shares  is  not  usually  incurred,  however, 
after  the  capital  stock  has  been  paid  in  ;  and  whether  the 
personal  representative  of  a  deceased  shareholder  should 
suffer  stock  to  be  lost  to  the  estate,  rather  than  pay  assess- 
ments thereon,  or  assume  corporate  debts,  is  mainly  a  ques- 
tion of  due  care  and  good  faith.^  But,  as  to  enforcing  a 
personal  liability  on  the  part  of  the  decedent,  the  doctrine 
of  the  English  equity  courts  is,  that  the  executor  or  adminis- 
trator of  a  deceased  shareholder  succeeds  presumably  to  the 
full  liability,  as  well  as  to  the  rights  of  the  latter,  such  as 
they  may  be  ;  and  even  that  for  liabilities  incurred  in  respect 
of  the  shares  since  the  death  of  the  shareholder,  the  repre- 
sentative must  respond  out  of  the  assets.^  The  American 
doctrine,  so  far  as  developed,  pursues  apparently  the  same 
doctrine,  to  at  least  the  extent  that  executors  and  adminis- 
trators of  deceased  shareholders  become  XvdhXo.  prima  facie  in 


1  Liverpool    Bank   v.   Walker,  4  De  the  partners  at  his  death  are  sold  by  his 

G.  &  J.  24;   Vulliamy  z/.  Noble,  3  Meriv.  executor  or  administrator  for  less  than 

619;   4  My.   &   Cr.    109;   Devaynes  v.  their  value,  and  the  amount  received  is 

Noble,  2  Russ.  &  My.  495 ;   Wilkinson  accounted  for  as  assets  of  the  estate,  the 

V.    Henderson,  i    My.  &   R.    582.     See  surviving  partners   on    a    bill  in  equity 

upon   this    subject  more  fully,  Collyer  against  the  executor  can   only   receive 

Partn.  §§  576-580;   Story  Partn.  §  362;  their  proportion.     Bradley  z^.  Brigham, 

I    Story  Eq.    Jur.    §    676;    Wms.   Exrs.  144  Mass.  181. 

1743,  1744,  and  cases  cited.     The  ad-  "^  Supra,  §  318. 

justment  or  winding-up  of  partnership  *  Baird's  Case,  L.   R.  5  Ch.  725,  and 
affairs  belongs  to  equity  courts.     As  to  cases  cited.     The  charter  or  act  of  in- 
winding  up  a  trade  with  the  surviving  corporation    must   be   examined   to  see 
partner,  see  supra,  §  325.     If  assets  of  whether  the  liability  is  made  less. 
a  partnership  in  possession  of  one  of 

454 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  381 

their  representative  capacity,  as  for  other  debts  of  the  de- 
ceased.^ 

Hence,  assets  of  the  estate  of  the  deceased  shareholder 
may  be  reached  in  equity  in  order  to  enforce  contribution 
among  shareholders  for  losses  sustained  by  the  company  ;  and 
this  after  a  procedure  analogous  to  that  which  obtains  in  ad- 
justing partnership  profits  and  losses.^  But,  even  where 
stockholders  are  made  liable  by  the  incorporating  act  beyond 
the  value  of  their  respective  shares,  for  debts  of  the  corpo- 
ration, it  is  not  unfrequently  provided  that  the  execution  shall 
issue  against  the  corporation,  and  be  returned  unsatisfied 
before  shareholders  can  be  thus  held  jointly  and  severally 
liable  for  the  debts  ;^  and  corporate  debts  are  usually  to  be 
enforced  directly  against  the  corporation,  whose  capital  stock, 
represented  by  the  certificates  of  shares,  and  invested  in  the 
corporate  business,  is  the  proper  and  primary  fund  from 
which  all  such  liabilities  should  be  made  good. 

It  is  held  in  England  that  the  personal  representative  who 
accepts  new  shares  of  a  corporation  should  be  put  on  the 
books  in  his  individual  and  not  his  representative  character, 
and  be  held  personally  liable  in  respect  of  them.^ 

§  381.  Exoneration  of  Personal  Property  specifically  be- 
queathed.—  Where,  by  the  terms  of  a  will,  chattels  are 
specifically  bequeathed,  such  as  a  diamond  ring,  a  silver  cup, 
or  a  stock  of  wines,  it  is  to  be  presumed  that  the  intention 
was  to  bequeath  them  by  an  unencumbered  title;  and  hence, 
if  at  the  testator's  death  the  ring  or  cup  be  found  pawned,  or 
the  wines  prove  to  be  on  storage  or  in  some  government 
warehouse  liable  to  customs  duties,  the  executor  should  re- 
deem or  exonerate  the  thing  at  the  expense  of  the  estate,  and 
deliver  it,  free  of  charge,  to  the  legatee.^ 

1  Grew  V.  Breed,  10  Met.  679,  contra,  *  Leeds  Banking  Co.,  Re,  L.  R.  i  Ch. 

Ripley  v.  Sampson,  10  Pick.  371 ;   New  231.    Turner,  L.  J.,  put  the  case  as  sim- 

England  Bank  v.  Stockholders,  6  R.  L  ilar  to  that  of  an  executor's  carrying  on 

154.  a  trade  with  assets.     But  the  rules  as  to 

^  Cases,    supra  ;    Bulmer's    Case,    33  permitting  a  trust  investment   in   stock 

Beav.  435.  are  not  the  same  in   England  as  in  most 

8  Cutright    V.   Stanford,    81   111.   240.  of  the  United  States.    .See  ^w/n/.  §  223. 

And  see  Thompson   on   Stockholders,  *  Knight  v.  Davis,  3   My.  &  K.  558; 

§§  250-254.  Stewart  v.  Denton,  4  Dougl.  219.     So, 

455 


§   382  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

But  the  just  intention  of  the  testator,  as  manifested  by  the 
will,  should  prevail  in  all  such  cases  where  this  presumption 
is  overcome.  Nor  is  a  thing  specifically  bequeathed,  unless 
the  will  so  prescribes,  to  be  put,  at  the  cost  of  the  estate,  in 
better  condition  than  the  testator  left  it ;  but  the  legatee 
must  take  it  for  better  or  worse,  just  as  the  testator  might 
have  handed  it  over  on  his  death.  Stock  specifically  be- 
queathed is  bequeathed  as  with  a  clear  title ;  but  so  as  to  re- 
lieve the  estate,  nevertheless,  from  the  whole  burden  of 
further  assessments,  as  well  as  to  deprive  it  of  the  benefit  of 
subsequent  dividends.^  For,  the  rule  is,  that  the  bequest  is 
taken  by  the  legatee  with  all  the  incidental  advantages  and 
disadvantages  of  dominion,  unless  the  will  should,  as  it  may, 
speak  differently.^  If  the  thing  had  ceased  to  exist  at  the 
testator's  death,  or  if  no  title  could,  under  the  circumstances, 
devolve  upon  his  personal  representative,  the  bequest  would 
prove  of  no  avail,  for  the  estate  would  not  be  bound  to  supply 
an  equivalent.^  All  this  is  presumed  to  be  in  accordance 
with  what  a  testator  intended  by  his  specific  bequest,  and 
conforms  to  general  doctrines  applicable  to  title  derived 
under  a  will. 

§  382.  Liability  of  Personal  Representative  in  Respect  of  his 
Own  Acts;  Negligence  or  Bad  Faith,  etc. —  Second.  To  dwell 
now  more  especially  upon  the  liability  which  a  personal 
representative  incurs  in  respect  of  his  own  acts  while  admin- 
istering the  estate.  The  course  of  investigation  in  former 
chapters  has  shown  us  that  every  executor  or  administrator 
is  bound  to  observe  not  only  good  faith,  but  a  certain  degree 
of  care  and  diligence,  properly  estimated  according  to  the 
circumstance  of  serving  with  or  without  compensation,  and 
fixed  at  "ordinary"  in  the  one  instance  and  "  slight  "  in  the 
other.     For  losses  occasioned  by  his  gross  negligence  or  wil- 

too,  we  may  suppose,  if  the  thing  speci-  ^  Wms.  Exrs.  1764,  commenting  upon 
fically  bequeathed  had  been  placed  on  Marshall  w.  Hollovvay,  5  Sim.  196,  where 
storage  by  the  decedent  or  left  to  be  a  leasehold  interest  was  specifically  he- 
mended,  queathed;    Hickliiig  v.   Boyer,    3  Mac. 

1  Armstrong  v.  Burnet,  20  Beav.  424;  &  G.  635. 

Dav  V.  Day,  i  Dr.  &  Sm.  261 ;   Addams  ^  See  §  461,  as  to  specific  legacies. 
V.  Ferick,  26  Beav.  384. 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  383 

ful  default  he  is,  therefore,  personally  liable  ;  and  usually,  too, 
in  the  United  States  (since  here  the  personal  representative 
is,  as  a  fiduciary,  entitled  to  compensation),  for  all  ill  conse- 
quences suffered  by  the  estate  through  his  failure  to  bestow 
ordinary  care  and  diligence.^  For  losses  occasioned  through 
his  bad  faith,  too,  the  representative  is  personally  liable.- 
Furthermore,  an  executor  or  administrator  is  bound  to  per- 
form his  whole  duty  according  as  tlie  law  or  his  testator's  will 
may  have  directed  ;  and  he  cannot,  after  accepting  the  trust, 
avoid  any  of  the  responsibilities  which  properly  attach  to  the 
ofifice.^ 

§  3^3-  Common-La'wr  Doctrine  as  to  Devastavit  or  Waste. — 
This  standard  of  liability  is  that  adopted  by  courts  of  equity 
and  probate  in  concurrence  with  the  common  sense  of  man- 
kind. But  the  common  law  appears  to  have  pursued  a  some- 
what different  theory  in  dealing  with  such  matters  ;  an  odd 
and,  indeed,  an  illiberal  one.^  In  equity  and  probate  practice, 
at  the  present  day,  the  executor  or  administrator  becomes 
bound  to  account  for  his  proceedings  under  his  trust,  and 
allowance  or  disallowance  of  items  and  transactions  is  made 
upon  the  just  maxims  of  responsibility  which  we  have  stated.^ 
But  the  common  law  long  recognized  direct  remedies  against 
the  personal  representative,  founded  upon  the  suggestion  of 
a  devastavit  on  his  part.^ 

A  violation  of  duty,  by  the  executor  or  administrator,  such 
as  renders  him  personally  responsible  for  mischievous  conse- 
quences, the  law  styles  a  devastavit ;  that  is,  a  wasting  of  the 
assets  ;  or,  to  take  the  definition  of  the  courts,  a  mismanage- 
ment of  the  estate  and  effects  of  the  deceased,  in  squandering 
and  misapplying  the  assets  contrary  to  the  duty  imposed  on 
him.  For  a  devastavit,  the  executor  or  administrator,  it  is 
said,  must  answer  out  of  his  own  means,  so  far  as  he  had  or 
might  have  had  assets  of  the  deceased^ 

1  Supra,  §§  313-315.  *  See  Part  VIL,  as  to  accounts,  etc. 

2  lb.  ''  Wms.  Exrs.  19S5;  appendix, /wA 

*  Booth  V.  Booth,  i  Beav.  1 25 ;  Jacob,         "  Bac.  Abr.  Exors.  L.  i ;   Wms.  Exrs. 
198;    Wilhams  v.  Nixon,  2  Beav.  472.         1796. 
«  Supra,  §  315. 

457 


§  3^4  EXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 

§  384.  The  Essential  Principle  of  Devastavit  is  of  General  Ap- 
plication.—  The  essential  principle  at  the  basis  of  this  rule  of 
devastavit  operates,  doubtless,  whenever  and  wherever  the 
personal  representative  should  personally  respond  for  his  offi- 
cial conduct  ;  and  whether  the  maladministration  be  wanton, 
wilful,  and  fraudulent  on  his  part,  or  founded  in  inexcusable 
carelessness,  and  whether  the  misconduct  be  active  or  passive, 
so  long  as  those  interested  in  the  assets  suffer  thereby.^  How 
wide  the  scope  of  this  doctrine,  we  have  already  seen,  while 
investigating  the  general  rights  and  powers  of  the  personal 
representative.  We  shall  see  its  further  application  here- 
after, when  we  come  to  consider  the  payment  of  debts 
and  claims  against  the  estate,  the  satisfaction  of  legacies, 
and  the  transfer  or  distribution  of  the  final  residue  ;  when 
we  observe  the  performance  of  his  official  duties  under 
peculiar  aspects,  as  where  the  estate  is  insolvent,  or  when 
it  becomes  needful  and  proper  for  him  to  take  the  charge 
of  his  decedent's  real  estate  or  sell  it ;  with  reference  to  the 
duty  of  accounting,  as  well  as  obeying  the  mandates  of  a 
court ;  and,  in  short,  throughout  the  entire  administration 
of  the  estate,  and  so  long  as  he  pursues  the  official  trust 
reposed  in  him.  And  what  is  thus  observable  of  a  sole 
original  executor  or  administrator  invested  with  plenary 
authority,  will  be  found  to  hold  true,  mutatis  mutandis,  in 
the  qualified  trusts  to  be  hereafter  specially  considered,  as 
where  the  appointment  is  not  original  and  complete,  or  where 
two  or  more  serve  together  in  the  office.  For  we  here  apply 
a  broad  principle  which  pervades  the  whole  law  of  bail- 
ments and  trusts,  and  underlies  the  performance  of  duty  by 
officers  public  or  private.     Official  responsibility,  in  a  word, 

^  Executors  and  administrators  may  the  assets  may  be  cited.  Of  the  latter 
be  guilty  of  a  devastavit,  not  only  by  a  kind,  numerous  instances  have  already 
direct  abuse  by  them,  as  by  spending  or  been  mentioned;  and  Williams  specie 
consuming,  or  converting  to  their  own  fies  particularly,  paying  too  much  for 
use  the  effects  of  the  deceased,  but  also  the  funeral,  paying  debts  out  of  order 
by  such  acts  of  negligence  and  wrong  to  the  prejudice  of  those  of  higher  rank, 
administration  as  will  disappoint  the  and  assenting  to  the  payment  of  a  leg- 
claimants  on  the  assets.  Bac.  Abr.  acy  when  there  is  not  a  fund  sufficient 
Exors.  L.  Among  examples  of  the  for-  for  creditors.  Wms.  Exrs.  1797. 
mer  kind,  a  collusive  sale  or  pledge  of 

458 


CHAP,   v.]      LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.      §   385 

involves,  in  any  station  of  life,  the  performance  of  one's 
duty  :  first,  honestly  and  uprightly,  and  next,  with  the  e.xer- 
cise  of  a  reasonable  degree  of  care  and  diligence,  according 
to  circumstances,  the  nature  of  the  trust  imposed,  and  the 
limitations  of  authority  prescribed  by  law.^ 

§  385-  Representative  not  to  be  sued  in  such  Capacity  for 
his  own  Wrongiul  Act;  Qualifications  of  the  Rule.  —  An  execu- 
tor or  administrator  cannot  be  sued  in  his  representative 
character,  for  his  own  wrongful  act  committed,  so  as  to  in- 
flict personal  injury  upon  another,  while  administering  the 
estate.  For,  if  liable  at  all,  the  act  is  outside  the  scope  of 
his  official  authority,  and  he  must  be  sued  and  held  responsible 
as  an  individual.^  But,  in  some  instances,  where  the  gist  of 
the  offence  consists  in  a  continuing  wrongful  detention  of 
the  plaintiff's  goods,  the  wrong  having  really  originated  with 
the  decedent,  a  suit  may  be  brought,  if  the  plaintiff  so  elect, 
against  the  executor  or  administrator  in  his  representative 
capacity.^     Statute  directions  on  such  points  seem  desirable ; 


^  It  has  been  observed  by  equity  him  with  the  estate  of  his  decedent, 
courts  that  two  principles  influence  their  Walter  v.  Miller,  I  Harr.  (Del.)  7. 
course,  with  respect  to  the  personal  lia-  And  see  Denny  i'.  Booker,  2  Bibb,  427; 
bility  of  executors  and  administrators  Thompson  j'.  White,  45  Me.  445;  Clapp 
for  their  official  conduct:  (i)  That  in  v.  Walters,  2  Tex.  130;  supra,  §  372. 
order  not  to  deter  persons  from  under-  In  some  instances  an  action  for  money 
taking  these  offices,  the  court  is  ex-  had  and  received  may  be  more  appropri- 
tremely  liberal  in  making  every  possible  ate.  See  Farrelly  i'.  Ladd,  10  Allen, 
allowance,  and  cautious  not  to  hold  127.  For  the  misapplied  balance  of 
executors  or  administrators  liable  upon  a  fund  entrusted  to  him  by  a  debtor  of 
slight  grounds.  (2)  That  care  must  be  the  estate,  for  discharging  the  debt  thus 
taken  to  guard  against  an  abuse  of  their  owing,  the  personal  representative  is 
trust.  Powell  v.  Evans,  5  Ves.  843;  liable,  not  in  his  official,  but  in  his  in- 
Tebbs  V.  Carpenter,  l  Madd.  298;  dividual,  character  ;  and  for  such  bal- 
Raphael  v.  Boehm,  13  Ves.  410.  As  to  ance  the  debtor  may  sue  as  for  money 
imputation  of  waste  from  one's  neglect  received  by  the  defendant  to  the  plain- 
to  file  an  inventory,  see  Orr  ?'.  Kaines,  tifTs  use.  Cronan  v.  Cutting,  99  Mass. 
2  Ves.  Sen.  193.  And  as  to  accounting,  334. 
see  Part  VII.,  post.  Trover    lies,    under    the    statutes    of 

■^  Boston   Packing  Co.  v.  Stevens,  12  some  States,  against  an  executor  or  ad- 

l"ed.  Rep.  279;    Thompson  7:.  White, 45  ministrator  in  such  cajiacitv,  for  a  con- 

Me.  445.  version,  as,  e.g.,  of  bonds  and  mortgages, 

^  Trover   will    lie   against    the  repre-  by  his  testate  or  intestate.     Terhune  v. 

sentative    personally,  for  a    conversion  Bray,  16  N.  J.  L.  54.     And  it  is  jiroper 

by  him,  though  the  property  came  to  to  treat  such  things  as   personal  prop- 

459 


§  386  EXFXUTORS    AND    ADMINISTRATORS.  [PART  IV. 

for  the  old  common  law  is  not  explicit  enough,  and  its  theory, 
that  the  right  of  action  dies  with  the  offender,  has  been  dis- 
carded to  a  great  extent  by  modern  legislatures.^ 

§  386.  Instances  of  Devastavit  considered;  Effect  of  an  Arbi- 
tration or  Compromise  of  Demands.  —  Only  a  few  special  in- 
stances of  liability  for  devastavit  or  waste,  at  the  common 
law,  need  here  be  specially  considered ;  for  the  general  doc- 
trine is  sufficiently  applied  under  approj^riate  heads  in  other 
chapters. 

At  common  law,  the  arbitration,  compromise,  or  release  of 
a  debt  or  claim  due  the  estate,  was  regarded  as  a  waste  on 
the  part  of  the  personal  representative,  if  it  resulted  in  loss 
to  the  estate.  Concerning  arbitration,  the  point  appears  to 
have  been  stated  in  the  old  books  quite  sternly  ;  ^  as  to  com- 
promise, however,  later  qualifications  were  admitted,  which 
in  good  reason  apply  to  either  act,  which  the  court  of  chan- 
cery saw  fit  to  insist  upon,  and  which,  as  to  either  compro- 
mise or  arbitration,  are  now  usually  insisted  *  upon.  The 
executor  or  administrator  who  compromised  a  debt,  so  as  to 
receive  less  than  its  full  amount,  was  still  held  answerable 
for  the  whole ;  and  yet,  if  he  could  show,  in  exculpation, 
that  he  acted  therein  for  the  benefit  of  the  estate,  he  stood 
excused.^  The  universal  test  for  modern  times  should  be, 
whether,  in  compromising  or  submitting  to  arbitration,  the 
representative    acted    with    fidelity  and  due  prudence;*  but 

erty,  whatever  may  have  been  the  earlier  arbitrators  award  him  less  than  his  due; 

rule.     Cf.  Chaplin   v.  Burett,   12  Rich,  this,  being  his  own  voluntary  act,  shall 

284.  bind    him,  and  he  shall  answer  for  the 

"The  principles  adopted  seem  to  be  full  value  as  assets.      Wentw.   Off.  Ex. 

that,  where  the  deceased,  by  a  tortious  304,   14th  ed.;   3  Leon.  53;    Bac.  Abr. 

act,  acquired  the  property  of  the  plain-  Exors.  L.;    I   Ld.  Raym.   363,  by  Holt, 

tiff,  as  by  cutting  his  trees  and  convert-  C.  J.     And  see   Reitzell    v.    Miller,    25 

ing  them  to  his  own  use,  or  by  convert-  111.  67;   Yarborough  v.  Leggett,  14  Tex. 

ing  his  goods  to  his  own  use;    although  677;   Nelson  z^.  Corn  well,  1 1  Gratt.  724. 

no  action   of  trover  or  trespass  will  lie;  ^  Wms.  Exrs.  1800;  Blue  v.  Marshall, 

yet  the  law  will  give  the  plaintiff  some  3  P.  Wms.  381;    Pennington  v.  Healey, 

form  of  action  to  recover  the  property  i  Cr.  &  My.  402. 

thus  tortiously  obtained."     Putnam,  J.,  *  See  Coffin  v.  Cottle,  4  Pick.  454; 

in  Cravath  v.  Plympton,  13  Mass.  454.  Chadbourn  v.  Chadbourn,  9  Allen,  173; 

1  See  supra,  §  373.  Eaton  v.  Cole,  i  Fairf.  137;    Kendall  v. 

2  If  the  executor  submits  a  debt  due  Bates,  35  Me.  357. 
to   the  testator  to  arbitration,   and  the 

460 


cIIAP.  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  387 

not  to  leave  the  doctrine  uncertain  on  this  point,  recent  ex- 
press legislation,  both  in  England  and  the  United  States, 
greatly  enlarges  the  powers  of  executors  and  administrators 
to  compound  and  refer  claims  and  demands  to  arbitration  at 
their  own  discretion,  clothing  probate  tribunals  in  numerous 
instances  with  express  jurisdiction  to  authorize  such  acts  on 
their  part,  and  thereby  afford  the  representative  a  more  ad- 
equate immunity. 

§  387.  Compromise  or  Arbitration  of  Claims  ;  Modern  Statutes. 
—  As  a  fair,  speedy,  and  inexpensive  means,  therefore,  of  ad- 
justing doubtful  claims  against  an  estate  and  relieving  the 
legal  representative  from  undue  responsibility,  our  modern 
legislation  permits  of  compromise  and  arbitration  ;  one  or 
other  of  which  causes  is  frequently  preferred  on  both  sides 
to  an  uncertain  law  suit.  Thus  the  English  statute  23  and 
24  Vict.  c.  145,  authorizes  executors  to  compound  and  refer 
to  arbitration,  "  without  being  responsible  for  any  loss  to  be 
occasioned  thereby."  ^  And  by  legislative  enactments  in  most 
of  the  United  States,  differing  somewhat  in  detail,  executors 
and  administrators  are  empowered  to  adjust  by  arbitration 
and  compromise,  any  demands  in  favor  of  or  against  the 
estates  represented  by  them,  under  previous  authority  of  the 
probate  court. ^  This  statute  authority  in  some  States,  how- 
ever, does  not  embrace  claims  against  the  estate,  but  only 
those  in  its  favor,  or  vice  versa  ;  nor  is  the  statutory  right  to 
arbitrate  treated  always  on  the  precise  footing  as  that  of 
compromising  claims.-^  And,  again,  as  under  the  English 
statute  above  cited,  the  right  conferred  by  the  legislature 
does  not  appear  always  to  contemplate  the  direct  interven- 
tion of  the  probate  court.* 

1  23  &  24  Vict.  c.  145,  §§  30,  34;  bitration  is  not  in  Texas  a  proper  mode 
Wms.  Exrs.  1801.  to  estalilish  a  rejected  claim.     Yarl)ur- 

2  Mass.  Gen.  Stats,  c.  loi,  §  10;  ough  v.  Leggett,  14  Tex.  677.  But  as 
Woodin  V.  Bayley,  13  Wend.  453;  to  the  general  reference  of  disallowed 
Tracy  z/.  Suydam,  30  Barb.  I  ID;  Peter's  claims,  see  McDaiiiels  v.  McD;inicls, 
Aippeal,  38  Penn.  St.  239.  40  Vt.  340.     See  also  Ponce  v.  Wiley, 

8  Reitzell  v.  Miller,  25  111.  67.  62  Ga.   118;   U.  S.  Digest,   ist   Series, 

*  Kendall    v.    Bates,    35    Me.    357;     Executors    and    Administrators.    2057- 

Childs  V.  Updyke,  9  Ohio  St.  it,t,.    Ar-     2080.     The  practitioner  should  consult 

461 


§38/ 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


This  right  of  arbitration  or  compromise  is  extended  by 
local  legislation  to  other  instances,  and  for  sundry  express 
purposes.  Thus,  in  Massachusetts  and  various  other  States, 
arbitrators  may  be  appointed  to  determine  the  validity  of  a 
claim  against  an  insolvent's  estate  ;  ^  or,  in  case  of  dispute, 
the  executor's  or  administrator's  personal  claim  upon  the 
deceased.^     And  it  is  also   provided   in   Massachusetts  that 


the  local  code  on  this  subject,  and  local 
decisions  construing  its  provisions.  Un- 
der the  New  York  code  a  claim  for  a 
tort  —  e.g.,  the  conversion  of  personal 
property  —  is  thus  referable.  Brockett 
V.  Bush,  i8  Abb.  Pr.  337.  But  only 
claims  which  accrued  or  would  have 
accrued  during  life.  17  Abb.  N.  Y.  Pr. 
374;  cf.  IVIcDaniels  v.  McDaniels,  40 
Vt.  340.  And  see  the  Maryland  statute 
which  does  not  apply  to  claims  binding 
the  executor  or  administrator  personally. 
Brosvne  v.  Preston,  38  Md.  373. 

Such  statutes,  being  for  a  convenient 
and  expeditious  settlement  of  the  estate, 
do  not  sanction  a  composition  deed 
giving  a  long  term  of  payment.  Loper, 
Matter  of,  2  Redf.  (N.  Y.)  545. 

The  effect  of  all  such  legislation  is 
mainly  to  sanction  a  course  of  proceed- 
ing on  the  part  of  an  executor  or  ad- 
ministtator,  formerly  open  to  him, 
though  at  a  greater  personal  peril.  At 
the  common  law  an  executor  or  admin- 
istrator might  compound  or  release  a 
debt  due  the  estate,  or  arbitrate,  if  he 
could  afterwards  show  that  his  act  was 
beneficial  to  the  estate;  but  if  the  arbi- 
trators awarded  less  than  was  due  the 
estate,  or  the  compromise  turned  out 
ill,  he  might  have  to  suffer  personally 
as  for  waste ;  for,  objection  being  made 
by  parties  interested  under  the  adminis- 
tration, he  had  the  onus  of  proving  that 
he  had  acted  judiciously  and  that  the 
estate  had  not  suffered  in  consequence. 
Wms.  Exrs.  1799,  1800,  and  cases  cited; 
I  Ld.  Raym.  369,  by  Holt,  C.  J.;  Wiles 
7A  Gresham,  5  De  G.  M.  &  G.  770;  Blue 
V.  Marshall,  3  P.  Wms.  381 ;  Nelson  v. 
Cornwell,  it  Gratt.  724 ;  Boyd  v.  Ogles- 
hy,  23  Gratt.  674 ;  Davenport  v.  Con- 
gregational Society,  33  Wis.  387 ;  Alex- 

462 


ander  v.  Kelso,  59  Tenn.  311.  A  stat- 
ute which  expressly  extends  the  power 
to  submit  claims  against  the  estate  to 
arbitration  may  yet  leave  claims  against 
the  estate  to  be  adjusted  as  at  common 
law.  Wood  V.  Tunnicliff,  74  N.  Y.  38 ; 
Geiger  v.  Kaigler,  9  S.  C.  401.  As  to 
binding  the  representative  personally 
by  the  award,  see  Wood  v.  Tunnicliff, 
supra.  By  procuring  previous  authority 
from  the  probate  court,  however,  as 
some  of  these  statutes  now  provide,  and 
by  pursuing  its  terms,  the  good  faith  of 
the  executor  or  administrator  is  sufficient 
warrant  that  the  arbitration  or  compro- 
mise will  stand ;  and  to  relieve  him 
from  personal  liability  for  ensuing  con- 
sequences is,  we  may  assume,  the  gen- 
eral purpose  of  all  such  legislation,  even 
where  such  permission  from  the  probate 
court  is  not  contemplated.  Wyman's 
Appeal,  13  N.  H.  18,  20,  per  Parker, 
C.  J. ;  Chadbourn  v.  Chadbourn,  9  Allen, 
173;  Chouteau  v.  Suydam,  21  N.  Y. 
179.  Debt  lies  on  a  decree  confirming 
the  award.  Noyes  v.  Phillips,  57  Vt. 
229.  If  a  party  in  interest  means  to 
attack  a  particular  compromise  obtained 
under  probate  sanction,  as  for  fraud,  he 
should  bring  a  bill  in  equity  or  proceed 
specially.  Henry  County  v.  Taylor,  36 
Iowa,  259.  See,  e.g.,  language  of  stat. 
23  &  24  Vict.  c.  145,  §  30,  cited  supra. 
The  general  right  of  an  executor  or 
administrator  to  arbitrate  or  conipromise 
appears  deducil)le  from  the  right  or 
duty  of  prosecuting  or  defending  suits 
which  involve  the  interests  of  the  estate 
he  represents.      And  see  §  298. 

1  Gilmore  v.  Hubbard,  12  Ciish.  220; 
Green  v.  Creighton,  7  Sm.  &  M.  197. 

2  Mass.  Public  Stats,  c.  136,  §  6. 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  T,88 

the  supreme  court  may  authorize  executors  or  achiiinistrators 
to  adjust,  by  arbitration  or  compromise,  controversies  arising 
between  different  claimants  to  the  estates  in  their  hands  ;  and 
further  provision  is  made  for  compromising  suits  which  in- 
volve the  validity  of  a  will.^ 

§  388.  Release  of  Debt,  Renewals,  etc.,  by  the  Executor  or 
Administrator. —  English  authorities  establish  that  at  the  old 
law,  if  the  legal  representative  releases  a  debt  due  the  dece- 
dent, or  delivers  up  or  cancels  a  bond  in  which  the  deceased 
was  named  obligee,  or  takes  a  new  obligation  expressed  to 
himself  personally,  or  settles  a  suit  upon  consideration,  he 
shall  be,  prima  facie  at  least,  chargeable  as  for  a  devastavit, 
for  the  full  consideration,  on  the  theory  that  unless  he  can 
produce  such  consideration  in  full,  he  must  have  wasted  it 
to  the  disadvantage  of  the  estate.^  Ordinarily,  a  representa- 
tive is  not  called  upon  to  forgive  or  release  a  debt  or  claim 
to  which  he  knows  the  estate  was  entitled,  without  receiving 
some  consideration ;  and  if  he  does  so  gratuitously  and  to  the 
detriment  of  the  estate,  he  is  liable  as  for  devastavit,  even 
though  he  acted  with  honest  purpose.^ 

But  modern  statutes  lessen  the  liability  for  releases  given 
upon  sundry  considerations  of  convenience  to  the  estate,  in 
various  prescribed  instances,  on  the  analogy  of  a  compro- 
mise. Thus,  in  some  States,  probate  courts  or  the  supreme 
court,  may  now  authorize  executors  or  administrators  to  re- 
lease and  discharge,  upon  such  terms  and  conditions  as  may 
appear  proper,  any  vested,  contingent  or  possible  right  or  in- 
terest belonging  to  the  persons  or  estates  represented  by 
them,  in  property  real  or  personal,  whenever  it  appears  for 
the  benefit  of  such  persons  or  estates.* 

1  Mass.  Pub.  Stats,  c.  142,  §§  13-16.  *  Mass.  Gen.  Stat.  c.  loi,  §  11.     See 

■■^  Wms.  Exrs.  1799,  1800;   Cro.  K!iz.  supra,  §  306,  as  to  renewals,  etc. 
43;    I  Ld.  Raym.  368;    i  Freem.  442.  In  sanctioning  arrangements  between 

3  People  V.  Pleas,  2  Johns.  Cas.  376.  parties  disputing  a  will,  chancery  senible 

It  is  held  that  the  representative  exceeds  does    not    intend    to    bind  infants    or 

his  proper  fuctions  when  he  enters  into  other  parties  not  sui  juris.     Norman  v. 

an  agreement    with  the    debtors  of  an  Strains,  29  \V.  R.  744. 
estate  to  extend  the    time  of  payment  A  release  may  involve  a  devasta7>if, 

beyond  that  fixed  by  the  original  con-  and  yet  not  be  null  and  void.    See  Dav- 

tract.     Landry  v.  Delas,    25   La.    .\nn.  enport    v.   Congregational   Society,    33 

181.  Wis.  387. 

463 


§  389  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  389.  Disregarding  the  Bar  of  Limitations ;  General  and 
Special  Statutes  of  Limitations. —  To  proceed  with  instances 
of  ifciujstavit.  The  rule  has  been  laid  down  in  England  and 
the  United  States,  that  it  is  not  devastavit  in  the  personal 
representative  to  pay  a  just  debt,  although  that  debt  be 
barred  by  limitations,  and  that  he  is  not  bound  to  plead  the 
statute  when  sued  by  a  creditor.  Thi.s,  however,  was  first 
promulgated  as  the  equity  view  ;  ^  for  courts  of  common  law 
appear  to  have  once  inclined  to  hold  to  the  contrary ;  ^  while 
chancery  left  it  rather  to  the  personal  representative  to 
satisfy,  at  his  own  discretion,  the  conscience  of  his  decedent. 
The  English  courts  of  equity  will  neither  compel  the  personal 
representative,  when  sued  by  a  creditor,  to  plead  the  statute 
bar  in  favor  of  the  residuary  legatee  or  distributee,  nor  suffer 
such  party  to  set  it  up  by  virtue  of  his  right  to  the  surplus, 
unless  proceedings  with  reference  to  the  estate  arc  in  such 
form  that  he  is  essentially  a  party  to  the  suit,  and  can  take 
this  advantage  without  interference.^  In  the  United  States 
the  general  rule  is  that  of  the  English  chancery ;  and  the 
executor  or  administrator  is  permitted  to  satisfy  the  barred 
debt,  and  need  not  plead  the  statute  of  limitations.*  Local 
codes  to  a  certain  extent,  however,  regulate  this  subject ;  and 
the  rule  in  some  States  appears  to  be  that  the  personal  rep- 
resentative can  only  exercise  his  discretion  where  the  statute 

1  Norton  v.  Frecker,  i  Atk.  526;  ^  Shewen  v.  Vandenhorst,  i  Russ.  & 
Stahlschmidt  z*.  Lett,  i  Sm.  &  G.  415;  My.  347;  2  Russ.  &  My.  75;  Wms. 
Wms.  Exrs.  1803;  Trimble  v.  Marshall,  Exrs.  1804;  Briggs  v.  Wilson,  5  De  G. 
66  Iowa,  233.  Notwithstanding  the  M.  &  G.  12.  After  a  decree  has  been 
personal  estate  is  insufficient  for  the  obtained  in  equity,  an  interested  party 
debt,  and  the  effect  will  be  to  throw  may  thus  take  advantage  of  the  decree 
the  burden  upon  the  real  estate,  the  rei>  and  set  up  the  statute.  Briggs  v.  Wil- 
resentative  is  not  obliged  to  plead  the  son,  supra. 

statute.     Lewis  v.  Runiney,  L.  R.  4  Eq.  *  Fairfax  v.  Fairfax,  2   Cranch,  25  ; 

451.     In  this  last-mentioned  case,  Lord  Wood    Limitations,     §    188;     Scott    v. 

Romilly,    M.    R.,   expressed   his    regret  Hancock,    13  Mass.   162;    Hodgdon  v. 

that  the  statute  did  not  destroy  the  debt  White,  11  N.  H.  208;  Thayer  v.  Hollis, 

instead  of  taking  away  the  remedy  for  3  Met.  369;    Ritter's  Appeal,  23  Penn. 

it,  and  thus  leaving  questions  of  discre-  St.  95;    Pollard  v.  Sears,   28  Ala.  484; 

tion  so  perplexing  to  arise.  Miller  v.  Dorsey,  9  Md.  317;    Payne  v. 

2  See  McCulloch  v.  Dawes,  9  Dow.  Pusey,  8  Bush,  564;  Walter  7/.  Radcliffe, 
&  Ry.  43,  disapproved  in  Hill  J/.  Walker,  2  Desau.  577;  Batson  v.  Murrell,  10 
4  Kay  &  J.  166;   Lewis  v.  Rumney,  L.  Humph.  301. 

R.  4Eq.  451. 

464 


CHAP,  v.]     LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.     §   39O 

of  limitations  operates  after  his  appointment,  or  perhaps 
since  the  decedent's  death ;  and  that  debts,  barred  while  the 
decedent  was  alive,  he  cannot  assume  the  power  to  pay.^ 

In  England  and  some  parts  of  the  United  States,  it  is  held 
that  an  acknowledgment  of  the  decedent's  debt  by  the  per- 
sonal representative  will  take  the  case  out  the  statute.^  But 
the  rule  most  consistent  with  the  policy  of  American  legisla- 
tion is,  that  an  acknowledgment  by  the  representative  does 
not  remove  the  statute  bar  after  it  has  once  operated  on  the 
debt,  although  it  may  suffice  to  suspend  its  operation  if  made 
before  the  bar  is  complete.^  In  any  event,  there  should  be 
not  only  a  new  promise  by  the  executor  or  administrator  in 
order  to  charge  the  estate,  but  a  promise  made  by  him  in  his 
representative  capacity ;  *  though  equity  corrects  the  com- 
mon-law tendency  to  exclude  such  acknowledgments,  by 
admitting  that  as  a  good  acknowledgment  on  the  represen- 
tative's part  which  would  have  been  good  if  made  by  the 
original  debtor.^ 

§  390.  General  and  Special  Statutes  of  Limitations ;  the  Sub- 
ject continued.  —  While,  however,  the  general  statute  of  lim- 

1  See  Patterson  v.  Cobb,  4  Fla.  481 ;  The  representative  may  with  pro- 
Rector  V.  Conway,  20  Ark.  79.  But  the  priety  pay  a  debt  due  to  himself  from 
English  rule  is  to  the  contrary,  recog-  the  estate  upon  which  the  statute  has 
nizing  no  such  distinction.  Hill  v.  run.  Payne  v.  Pusey,  8  Bush,  564. 
Walker,  4  K.  &  G.  166.  A  testator  2  Briggs  v.  Wilson,  5  De  G.  M.  &  G. 
may  expressly  direct  his  executor  to  12;  Browning  z'.  Paris,  5  M.  &  W.  120; 
disregard  the  statute  of  limitations.  Semmes  v.  Magruder,  10  Md.  242; 
Campbell  v.  Shoatwell,  51  Tex.  27.  Northcut  v.  Wilkins,  12  B.  Mon.  408; 

Among  other  proceedings  in  equity  Brewster   v.    Brewster,    52   N.    H.  52; 

which  constitute  an  exception  to  the  rule  Shreve  v.  Joyce,  36  N.  J.  L.  44;   Wood 

Ihat  the  executor  or  administrator  alone  Limitations,  §  190. 

Bnall  exercise  the  option  of  pleading  the  '^  Wood  Limitations,  §  190,  and  cases 

ntatute,  is  that  of  bringing  a  bill  to  charge  cited;    Forney  z'.  Benedict,  5   Penn.  St. 

Ihe  real  estate  of  the  deceased  with  the  225;   Foster  v.  Starkey,  12  Cush.  324; 

payment  of  debts  due  from  the  estate;  McLaren   v.  McMartin,  39  N.  V.  38. 

and  where  this  method  is  pursued,  the  As  to  acknowledgment  by  only  one  of 

heir  or  a  devisee,  residuary  legatee,  or  two  or  more   executors,  of.  Scholey  v. 

other  person  in  interest,  is  so  brought  Walton,   12    M.  &  W.  514;    Shreve  v. 

into   the   suit    that  the  statute  may  be  Jovce,  36  N.  J.  L.  44. 

interposed  by  him.     Wood  Limitations,  *  Scholey   v.  Walton,    I2   M.   &   W. 

§    188;    Pnrtridge  v.  Mitchell,   3   Edw.  510;    Atkins  r/.  Trcdgold,  2  B.  &  C.  28. 

Ch.  180;  Wnrren  v.  Poff,  4  Bradf.  260.  ^  Cf.  Briggs  v.   Wilson,  5   De  G.  M. 

And  see  Woodyard  v.  Polsley,   14  W.  &  G.  12;   Tullock  v.  Dunn,  Ry.  &  Moo. 

Va.  211.  416. 

46s 


§  390 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


itations  may  be  disregarded,  it  is  held  waste  not  to  plead  the 
special  bar  which  our  modern  local  legislation  sets  to  de- 
mands against  the  estates  of  deceased  persons.^  In  most  of 
our  States,  indeed,  express  provision  is  now  made  that  claims 
against  an  estate  shall  be  presented  within  a  certain  time 
after  the  death  of  the  debtor  or  the  appointment  of  his 
executor  or  administrator,  or  be  forever  barred  ;  and  the 
reason  of  such  legislation  being  sound,  and  the  language 
of  the  enactment  explicit,  the  personal  representative  is 
bound  to  comply  with  the  requirement.^  Creditors  them- 
selves are  thus  put  upon  the  alert ;  and  their  own  want  of 
vigilance  cannot  protect  their  claims  against  the  statute 
barrier,  where  they  have  relied  upon  the  representative,  and 
forborne  to  sue  at  his  request.^ 


^  Thompson  v.  Brown,  i6  Mass.  172; 
Heath  v.  Wells,  5  Pick.  140;  Langham 
V.  Baker,  5  Baxt.  701 ;  Littlefield  v. 
Eaton,  74  Me.  516,  Part  V.,  c.  i. 

2  lb.  And  see  U.  S.  Dig.  ist  series, 
Exrs.  &  Admrs.  4472 ;  Wood  Limita- 
tions, §  i88,  and  numerous  cases  cited; 
payment  of  debts,  c.  post;  Ticknor  v. 
Harris,  14  N.  H.  272;  Harter  v.  Tag- 
gart,  14  Ohio  St.  122. 

^  lb.  And  see  Langham  v.  Baker,  5 
Baxt.  701.  Unless  the  statute  gives  the 
court  power  to  excuse  delay,  reasons 
why  the  creditor  neglected  to  present 
his  demand  in  due  time  cannot  be  con- 
sidered. Sandford  v.  Wicks,  3  Ala. 
369.  It  is  held,  as  to  various  statutes  of 
this  character,  that  strictly  equitable 
claims  as  mortgages  are  not  included. 
Bradley  v.  Norris,  3  Vt.  369 ;  McMur- 
rey  v.  Hopper,  43  Penn.  St.  468  ;  Fisher 
V.  Mossman,  11  Ohio  St.  42;  Allen  v. 
Moer,  16  Iowa,  307.  Nor  claims  for 
the  recovery  of  specific  property.  An- 
drews V.  Huckabee,  30  Ala.  143.  Or  to 
compel  the  application  of  trust  prop- 
erty to  the  payment  of  the  debt  which 
it  was  held  in  trust  to  secure.  Stark  v. 
Hunton,  3  N.  J.  Eq.  300;  Pope  v.  Boyd, 
22  Ark.  535.  Nor  claims  originating 
after  the  period  named.  Griswold  v. 
Bigelow,  6  Conn.  258.  Nor  claims  in 
the  orphans'   court.     Yingling  v.  Hes- 


son,  16  Md.  112.  Nor  so  as  to  debar 
the  creditor  from  making  a  set-off  when 
sued.  Lay  v.  Mechanics'  Bank,  61 
Mo.  72.  And  see  Neil  v.  Cunningham, 
2  Port.  271;  Wood  Limitations,  §  189, 
and  cases  cited. 

Such  statutes  properly  reckon  the 
period  from  the  date  of  the  representa- 
tive's appointment;  for  the  running  of 
such  a  period  between  the  decedent's 
death  and  the  qualification  of  his  exec- 
utor or  administrator  would  work  injus- 
tice to  the  creditor.     2>Z  Ark.  141. 

The  recovery  of  a  claim  against  the 
estate  of  a  deceased  person,  which  origi- 
nates after,  or  from  its  nature  cannot  be 
ascertained  within  the  time  limited  by 
the  court  for  the  exhibition  of  claims,  is 
not  barred  by  its  non-exhibition  within 
that  time.  Griswold  v.  Bigelow,  6  Cunn. 
258;  Hawley  v.  Botsford,  27  Conn.  80; 
Chambers  v.  Smith,  23  Mo.  174.  And 
where  such  claim  has  been  duly  exhib- 
ited to  the  representative,  and  its  pay- 
ment refused,  the  natural  and  proper 
remedy  (in  the  absence  of  explicit  legis- 
lative provision)  is  to  bring  an  action  at 
law  against  the  representative.  Bacon 
V.  Thorp,  27  Conn.  251.  As  to  the 
representative's  individual  liability  in 
such  cases,  see  Oates  v.  Lilly,  84  N.  C. 
643;   McGrath  v.  Barnes,  13  S.  C.  328. 


466 


CHAP,  v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.    §  39O  « 

How  far  an  executor  or  administrator  is  at  liberty  to  revive 
debts  or  claims  against  the  estate  he  represents,  which  are 
already  barred,  is  not  clearly  determined.  In  most  cases, 
the  circumstance  of  his  doing  so  is  to  be  attributed,  appar- 
ently, to  the  conscientious  exercise  of  that  option  which  we 
have  seen  is  now  so  generally  conceded  to  him.^  But  if  he 
goes  beyond  the  line  of  legislative  and  judicial  sanction,  and 
pays  an  outlawed  debt  corruptly  or  in  violation  of  the  duty 
he  owed  as  personal  representative  of  the  estate,  he  may 
become  liable  personally  as  for  devastavit?  Equity  will, 
under  special  circumstances  of  hardship,  though  not  usually, 
furnish  relief  to  a  party  whose  claims  against  an  estate  can- 
not be  enforced  at  law,  by  reason  of  his  failure  to  comply 
with  the  requirement  of  a  statute  limiting  the  time  of  pre- 
senting and  suing  on  the  same;^  nor  are  express  reservations 
of  this  character  absent  from  such  local  legislation. 


§  390  a.   The  Subject  continued. — Whenever  the  statute  of 
limitations  has  bejrun  to  run  ajrainst  a  debt  or  claim  due  the 


^  Supra,  same  section. 

2  Where,  for  instance,  he  pays  a  debt 
in  violation  of  the  special  statute  barrier 
imposed  upon  executors  and  adminis- 
trators. See  supra,  same  section.  If 
one  sets  up  the  bar  of  limitations,  he 
must  make  and  sustain  such  defence  with 
due  diligence  and  good  faith.  Teague 
V.  Corbitt,  57  Ala.  529. 

^  McCormack  v.  Cook,  1 1  Iowa,  267  ; 
Stromo  V.  Bissel,  20  Iowa,  68;  Clifton 
V.  Haig,  4  Desau.  330. 

With  reference  to  a  creditor  against 
the  estate,  the  rule,  irrespective  of 
statute  qualifications,  appears  to  be  this  : 
death  of  the  debtor  does  not  suspend 
the  running  of  the  statute  where  the 
cause  of  action  accrued  before  his  death ; 
but  where  the  cause  of  action  accrues 
after  his  death,  the  statute  does  not  be- 
gin to  run  until  an  executor  or  adminis- 
trator is  qualified,  inasmuch  as  the  credi- 
tor meanwhile  has  found  no  one  whom 
he  could  sue;  and  where  the  cause  of 
action  arises  on  a  contract,  etc.,  by  the 
representative  himself,  the  statute  begins 


to    run    from    the    time    such    cause    of 
action  accrued. 

An  administrator  cannot  be  held 
liable  for  not  paying  a  judgment  more 
than  seven  years  old  which  has  not  been 
revived.  (Proves  v.  Williams,  68  Ga. 
598.  A  claim  for  money  held  by  the 
deceased  as  administrator  is  barred  by 
the  statute  of  non-claim.  39  Ark.  577. 
Also  an  information  in  equity  by  the 
attorney-general.  142  Mass.  248.  And 
being  barred  against  the  executor  a 
right  of  action  is  barred  against  the  de- 
visee. Fo«ler  %i.  True,  76  Me.  43.  No 
exception  as  to  persons  under  disability 
can  be  made  if  the  statute  does  not 
make  it.  Morgan  v.  Hamlet,  113  U.  S. 
449;  76  Me.  196.  .Secured  claims  are 
meant  as  well  as  unsecured.  62  Tex. 
375.  But  cf.  98  Ind.  499.  Notice  by 
the  executor  or  administrator  of  his  ap- 
pointment is  in  many  States  a  pre-requi- 
site  to  the  running  of  this  special 
statute.  And  by  some  codes  the  repre- 
sentative must  be  notified  before  he  can 
be  sued.     76  Me.  17. 


467 


§  390  O,  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

estate  before  the  death  of  the  decedent,  although  upon  the 
very  day  of  his  death,  the  statute  bar  will  operate,  notwith- 
standing the  personal  representative  sues  for  it  within  a 
reasonable  time  afterwards.^  In  several  States,  however, 
this  hardship  is  corrected  by  express  enactment. ^  Where, 
too,  the  statute  has  begun  to  run  upon  the  decedent's  debt 
or  claim  during  his  life,  it  is  not  suspended  by  his  death, 
although  no  representative  has  been  appointed.^  This  hard- 
ship, once  more,  some  State  legislatures  have  removed.*  As 
for  a  debt  or  claim,  however,  against  which  the  statute  had 
not  commenced  to  run  during  the  creditor's  or  claimant's  life, 
it  will  not  begin  to  run  against  his  estate  until  the  executor's 
or  administrator's  appointment  and  qualification ;  and  this 
upon  the  principle  that  there  was  no  person  capable  of  suing 
for  it.^  This,  once  more,  is  a  rule  subject  to  the  manifest 
direction  of  the  legislature  upon  a  construction  of  local  stat- 
utes. An  acknowledgment  or  partial  payment  made  to  the 
executor  or  administrator  by  a  debtor  to  the  estate  will  take 
the  debt  out  of  the  statute  of  limitations.^ 

The  rule  of  equity  appears  to  be  the  same  as  that  of  law 
as  to  the  running  of  the  statute  bar  against  claims  due  the 
estate ;  but  the  executor  or  administrator  cannot,  by  deferring 
probate,  take  personal  advantage  of  a  debt  owing  from  him- 
self to  the  estate  he  represents ;  and  in  various  cases  of 
fraud  or  mistake,  equity  makes  an  exception  to  the  general 
rule,  that  where  time  has  begun  to  run  in  the  decedent's  life- 


'  Penny  v.  Brice,  i8  C.  B.  N.  s.  393.  Sherman  v.  Western  R.,  24  Iowa,  515; 

2  Wood  Limitations,  §§  193,  196.  Wood    Limitations,   §    194,  where  this 

3  Davis  z'.  Garr,  6  N.  Y.  124;  Burnett  doctrine  is  discussed  with  reference  to 
V.  Brian,  6  N.  J.  L.  377;  Hall  w.  Deatly,  statute  actions  by  the  executor  or  ad- 
7  Bush,  687;  Baker  v.  Brown,  18  111.  ministrator  for  causing  the  death  of  his 
91 ;   Jackson  v.  Hitt,  12  Vt.  285;  Wood  testate  or  intestate. 

Limitations,  §  194.  ^  Martin  v.  Williams,  17  Johns.  330; 

*  Wood  Limitations,  §   196,  and  ap-  Jones  v.  Moore,  5  Binn.  573.     And  see 

pendix.      A    certain    period    is  usually  Townsend   v.    Ingersoll,    12    Abb.    Pr. 

allowed    the    representative,    after    his  (N.  Y.)    N.    s.  354.     A  creditor   recov- 

appointment,    to    bring    suit    by   local  ering  judgment  within    the    two  years 

enactments.  period  Hmited  by  statute,  the  execution 

^  Burdick  zi.  Garrick,  L.  R.  5  Ch.233;  on  the  judgment  not  being  satisfied,  can- 
Clark  V.  Hardman,  2  Leigh,  347;  An-  not  sue  upon  the  judgment  after  the  two 
drews  v.   Hartford   R.,   34  Conn.   57;  years  expire.     134  Mass.  115. 

468 


CHAP,  v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.    §  39O  b 

time  it  shall  not  be  suspended  between  the  date  of  his  death 
and  the  date  when  the  representative  qualifies.^ 

It  still  remains  a  subject  for  judicial  decision  as  to  how 
far  an  executor  or  administrator  becomes  liable  personally  as 
for  a  devastavity  if  he  allows  time  to  run  in  favor  of  a  debtor 
and  against  the  estate  he  represents  ;  but  it  would  appear 
that,  for  culpable  neglect  or  bad  faith  on  his  part  producing 
this  result,  he  may  be  held  personally  liable.^ 

§  390  b.  The  same  Subject.  —  It  may  be  questioned  whether 
an  executor  or  administrator  will  be  permitted  to  allege  his 
own  wrong  so  as  to  have  time  run  in  his  favor.  But  the 
statute  of  limitations  does  not  begin  to  run  in  his  favor  as 
against  a  claim  for  damages  occasioned  by  his  negligence  in 
collecting  what  was  due  the  estate,  from  the  time  his  letters 
issue  but  at  best  only  from  the  time  of  loss.^  Under  some  of 
our  codes  the  acknowledgment  by  the  executor  or  administra- 
tor of  a  debt  against  the  estate  and  the  ranking  of  it  by  the 
probate  court  suspends  prescription  ;  this  being  the  prelimi- 
nary which  dispenses  with  suit  by  a  claimant.'*  And  the 
statute  which  bars  all  claims  which  are  not  sued  against  the 
estate  within  a  certain  period  refers  naturally  to  claims 
against  the  deceased  and  not  to  those  arising  upon  some 
contract  with  his  representative  after  his  death.^  A  repre- 
sentative who  promises  to  pay  regardless  of  the  statute  may 
bind  himself,  but  he  does  not  bind  the  estate,  nor  the  sureties 
on  his  bond.^ 

This  policy,  however,  of  barring  out  claims  which  are  tard- 
ily prevented  and  enforced  is  not  so  much  to  exclude  them 
as  to  allow  the  estate  to  be  expeditiously  settled  and  distrib- 
uted ;  and  hence  new  assets  or  a  new  surplus  to  distribute 
might  change  the  face  of  the  situation. 


1  Wood  Limitations,  §  199;   Brooks-  'Harrington   v.  Keteltas,  92  N.  Y. 
bank  v.  Smith,  2  Y.  &  C.  58;   Ingfe  v.  40. 

Richards,    28    Beav.    366;     Barfield   v.  *  Johnson  7/.  Waters,  1 1 1   U.  S.  640. 

King,  29  Ga.  288.  ^  Coburn  v.  Harris,  58  Md.  87. 

2  12  Mod.  573;   Wood  Limitations,  ^  Judge  of  Probate  v.  Ellis,  63  N.  H 
§  197.  366;    Robinson  v.   Hodge,    117    Mass. 

224. 


§  393  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  391.  Opportunity  to  ascertain  ■whether  the  Estate  is  Insol- 
vent.—  An  executor  or  administrator  is  usually  allowed  a 
reasonable  time  for  ascertaining  whether  the  estate  can  meet 
its  obligations.  Hence  we  find  local  statutes  forbidding  suits 
to  be  brought  against  the  representative  within  a  specified 
time  (as  for  instance,  a  year)  unless  it  be  for  some  demand 
that  would  not  be  affected  by  the  insolvency  of  the  estate; 
or  after  the  estate  has  been  represented  insolvent.^ 

§  392.  Instances  of  Devastavit  continued  ;  disregarding  the 
Statute  of  Frauds.  —  While  the  bar  of  limitations  may  thus 
be  disregarded,  in  the  case  of  demands  once  binding,  an 
executor  or  administrator  exercises  no  such  option  as  to 
debts  or  claims  which  never  had  a  binding  force,  since  the 
law  invests  him  with  no  authority  on  the  decedent's  behalf 
to  dispense  favors  or  perform  obligations  simply  moral. 
Hence,  he  cannot  pay  a  debt  that  accrued  under  a  contract 
that  is  void  because  within  the  statute  of  frauds  ;  and,  if  he 
does  so,  he  is  chargeable  with  devastavit ;  though  the  prom- 
ise may  be  said  to  create  a  personal  liability  on  his  part.^ 

§  393.  Devastavit  -when  excused  by  Concurrence,  Acqui- 
escence, etc.,  of  those  injured  thereby.  —  The  concurrence  or 
acquiescence  of  those  injuriously  affected  by  the  devastavit 
of  an  executor  or  administrator  will,  agreeably  to  general 
maxims,  release  the  latter  party  from  further  responsibility 
for  the  injurious  act  or  transaction  ;  and  so,  doubtless,  their 
release  or  acquittance  as  for  satisfaction  and  indemnity  ren- 
dered by  a  mutual  private  arrangement.  But  a  court  of 
equity  or  probate  is  at  liberty  to  inquire  into  all  the  circum- 
stances which  induced  such  action  on  their  part,  and  ascer- 
tain whether  their  conduct  really  amounts  to  such  sanction, 
ratification,  or  acquittance  as  ought  justly  to  relieve  the  rep- 
resentative from  further  liability.^ 

1  See  Studley  v.  Willis,  134  Mass.  236.  Mere  laches  in  abstaining  from 
155;    116  Mass.  435.  calling  upon  the  representative  to  real- 

2  Baker  v.  Fuller,  69  Me.  152;  ize  for  the  purpose  of  paying  his  debt, 
Rownen,  Re,  29  Ch.  D.  358  (the  repre-  whereby  the  representative  has  not 
sentative's  own  claim).  been  misled,  will  not  deprive  a  creditor 

2  Burrows  v.  Walls,  5  De  G.  M.  &  G.  of  his  right  to  sue  the  representative  for 
233;   Wms.  Exrs.  1836;   25  Beav,  177,     devastavit.     Birch,  .ff^,  27  Ch.  D.  622. 

470 


CHAP,  v.]     LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  395 

§  394.  Complicity  of  third  Persons  in  the  Devastavit  renders 
them  liable. — Whenever  an  executor  or  administrator  vio- 
lates his  trust,  and  another  person  taices  advantage  of  the 
devastavit,  knowing  that  the  personal  representative  is  not 
proceeding  according  to  the  requirements  of  the  law,  or  the 
terms  of  the  will  under  which  he  was  appointed,  such  com- 
plicity will  authorize  those  interested  in  the  estate  to  hold 
such  third  party  liable.^ 

§  395.  Liability  of  Executor  or  Administrator  on  his  own 
Contracts.  — The  liability  of  an  executor  or  administrator,  in 
respect  of  his  own  contracts  touching  the  estate,  may  be 
gathered  in  a  measure  from  our  previous  discussion  of  his 
rights.^  The  former  inclination  appears  to  have  been  to 
charge  the  executor  or  administrator  strictly  as  an  individual, 
and  not  in  his  representative  capacity,  where  the  promise  was 
alleged  to  have  been  made  by  him  after  the  death  of  the  per- 
son whose  estate  he  represented.  In  general,  where  the  claim 
or  demand  wholly  accrued  in  his  own  time,  the  representative 
was  to  be  held  personally  liable  alone.^  And  some  decisions 
still  countenance  the  doctrine  that  no  action  at  law  will  lie 
against  an  executor  or  administrator,  as  such,  except  upon 
some  claim  which  originated  against  the  testator  or  intestate 
during  his  lifetime,  notwithstanding  the  contract  sued  upon 
was  made  by  him  for  the  benefit  of  the  estate.* 

But,  according  to  the  weight  of  modern  authorities,  the 
executor  or  administrator  is  liable  upon  such  promise,  in  his 
representative,  as  well  as  his  personal  capacity,  where  the  claim 
or  demand  accrues  in  his  own  time,^  provided  that  which  con- 
stituted the  consideration  of  the  promise,  or  the  cause  of 
action,  arose  in  the  lifetime  of  the  decedent.*^  Where  assets 
are  deficient,  a  reliance  upon  the  individual  liability  of  a 
wealthy  representative  may  be  advantageous  for  the  creditor ; 

^Rogers   v.  Fort,   19  Ga.  94.     And  Adams,  16  Vt.  228;  Beaty  v.  Gingles, 

see  supra  as  to  sales,  §  359.  8  Jones  L.  302. 

2  Supra,  §  290.  *  See  De  Valengin  v.  Duffy,  14  Pet. 

3  Wms.   Exrs.   1771;   Cro.  Eliz.   91;  282, /<rr  Taney,  C.  J. 
Hawkes  v.  Saunders,  Cowp.  289;   Jen-  ^  lb. 

nings  V.  Newman,  4  T.  R.  348;  Cocke  ^  Thomas,  J.,  in  Luscomb  v.  Ballard, 

V.  Trotter,    10   Yerg.    213;    Adams   v.     5  Gray,  403. 


§  395  EXECUTORS    AND    ADMINISTRATORS.  [PAKT  IV. 

but  the  reverse  is  sometimes  the  actual  situation,  and  hence 
the  advantage  of  giving  the  plaintiff  an  option.^  In  modern 
practice,  however,  the  sufficiency  of  a  probate  bond,  with 
principal  and  sureties,  may  be  of  great  consequence. 

English  precedents  establish  that,  in  various  instances,  the 
representative  may  be  sued  as  such,  on  a  promise  made  by 
him  in  the  representative  character,  so  that  a  declaration 
founded  on  such  a  promise  will  charge  him  no  further  than 
though  the  promise  had  been  made  to  the  decedent  himself. 
As,  perhaps,  upon  the  executor's  promise  to  pay  an  award  made 
after  his  testator's  death  upon  an  arbitration  previously  entered 
into  by  the  testator  himself.^  Or  in  instances  where  the 
plaintiff  avers  simply  a  liability  of  the  defendant  as  executor^ 
or  as  administrator  ;  ^  though  exceptions  like  these  raise  nice 
distinctions  in  pleading  not  always  clear  to  the  logical  mind, 
nor  wholly  satisfactory  to  the  common-law  judges  who  feel 
compelled  to  recognize  them.*  These  distinctions  appear  to 
have  originated  in  a  judicial  effort  to  shield  the  personal 
representative  from  individual  loss,  where  the  plaintiff's  cause 
of  action  originated,  essentially  during  the  decedent's  life, 
and  upon  the  decedent's  own  promise,  not  that  of  the  repre- 
sentative ;  the  latter  having  done  scarcely  more  on  his  part 
than  to  recognize  the  claim  as  still  binding.  And,  conse- 
quently the  plaintiff  was  remitted  to  the  assets,  the  court 
treating  the  representative's  own  engagement  as  presupposing 
an  adjustment  on  such  a  basis.^ 


1  Ashby  V.  Ashby,  7  B.  &  C.  449.  a  contract  liability  of  the   testator   in- 

2  Dowse  z'.  Coxe,  3  Bing.  20;  reversed,  curred  during  his  life.     And  see  Pugs- 
however,  on  appeal,  though  on  a  differ-  ley  v.  Aiken,  i  Kern.  494. 

ent  ground.     6  B.  &  C.  255.  ^  So  is   it   held  in  this  country  that 

^  Secar  v.  Atkinson,  i   H.  Bl.   102;  for   property  lawfully  received    by  the 

Ashby  V.  Ashby,  7  B.  &  C.  444;   Wms.  executor  and  administrator,  and  held  as 

Exrs.  1773.  assets,  he  is  liable  to  any  party  having  a 

*  See  Rose  v.  Bowler,  l    H.  Bl.  108;  good    title,  either  in  his  representative 

7  Taunt.  586;    also  Lord  Tenterden  and  character,  or   personally   de    bonis  pro- 

Littledalej  J.,  in  Ashby  v.  Ashby,  7  B.  priis,    at    such    party's    election.     De 

&C.  449,  452;  Wms.  Exrs.  1771-1776,  Valengin  v.  Duffy,    14  Pet.  282.     The 

where  these  cases  are  collated.  And  see  remarks  of  Taney,  C.  J.,  in  this  case, 

Scott  V.  Key,  9  La.  Ann.  213.    In  Chou-  seem  to  favor  considerable  latitude  as 

teau  V.  Suydam,  21  N.  Y.  179,  the  sub-  to  allowing  a  plaintiff  to  sue  the  repre- 

ject  matter  of  the  contract  was  in  fact  sentative,  at  election,  either  in  his  indi- 

472 


CHAP,  v.]      LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §  397 

8  396.  Representative  ho'w  sued  upon  his  Express  Promise, 
Collateral  Undertaking,  etc.  —  If  an  executor  or  administrator 
promises  in  writing,  that,  in  consideration  of  having  assets, 
he  will  pay  a  particular  debt  of  his  decedent,  or  otherwise 
brings  himself  within  the  rule  of  a  personal  collateral  under- 
taking for  his  decedent's  obligation,^  he  may  be  sued  on  this 
promise  in  his  individual  capacity,  and  the  judgment  against 
him  will  be  dc  bonis  propriis?  The  plaintiff  should  in  such 
case  aver  assets,  or  a  forbearance  to  sue,  or  some  other  con- 
sideration. And,  in  general,  where  the  nature  of  the  debt  is 
such  as  renders  it  binding  upon  the  representative  as  an  in- 
dividual, wdicther  because  he  contracted  it  or  because  he  has 
assumed  the  liability  which  originated  against  the  decedent, 
the  judgment  will  be  against  him  de  bonis  propriis,  although 
he  promised  nominally  in  the  official  capacity.^ 

§  397.  Representative  liable  as  an  Individual,  where  Cause  of 
Action  wliolly  accrued  after  his  Decedent's  Death,  on  Transac- 
tions with  Him,  etc.  —  In  causes  of  action  wholly  accruing 
after  his  decedent's  death,  the  personal  representative  is  in 
general  liable  individually.*  And  wherever  an  action  is 
brought  against  an  executor  or  administrator,  on  promises 
said  to  have  been  made  by  him  after  his  decedent's  death,  he 
is  chargeable  in  his  own  right  and  not  as  representative.^  In 
general,  an  action  for  goods  sold  and  delivered  to  one  as  rep- 
resentative, or  for  work  done,  or  services  rendered,  at  his 
request,  in  the  settlement  of  the  estate,  should  be  brought 
against  the  defendant  personally,  and  not  in  his  representa- 

vidual  or  representative  capacity,  though  3  M.  &  W.  350;  supra,  %  256;   Johns- 

the  demand  should  wholly  accrue  after  ton  t'.  Union  Bank,  37  Miss.  526;  Wood 

the  decedent's   death.     And  see  supra,  v.  Tunnicliff,  74  N.  Y.  38.    Even  though 

§  382.  the  decedent  might  not  have  been  suable 

^  Supra,  §  255.  on  his  promise,  the  representatives  may 

2  lb.;    Wms.    Exrs.    1783;   Cro.   Eliz.  be  suable  on    theirs.     Rusling  v.  Rus- 

91;   Taliaferro    v.    Robb,    2    Call.    258.  ling,  47  X.  J.  L.  i. 
But  as  to  the   necessity  of  averring  as-  *  De  Valengin  v.  Duffy,  14  Pet.  282; 

sets,    cf.    Wins.    Exrs.    1776;    7   Taunt.  Kerchner  v.  McRae,  80  N.  C.  219. 
580;    3    Bing.    20.     If    there   were   no  ^  Wms.  Exrs.    1771;    Cro.  Eliz.  91; 

assets,  the  promise  of  the  representative  Cowp.    289;    Jennings   v.   Newman,   4 

is  nudum  pactum.     Supra,  §  255.  T.  R.  348;   Clarke  v.  Alexander,  71  Ga. 

8  Wms.  Exrs.  1783;   Corner  z/.  Shew,  500. 

473 


§   39^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

tive  character.^  Wherever,  in  fact,  the  action  is  brought 
against  the  executor  or  administrator  on  his  own  contracts  and 
engagements,  though  made  for  the  benefit  of  the  estate,  this 
rule  holds  true  ;  and  his  promise  "as  executor,"  or  "  as  admin- 
istrator," will  not  alter  its  application.^  For,  having  no  power 
to  bind  the  estate  specifically  by  his  engagements,  the  repre- 
sentative binds  himself;  there  can,  therefore,  be  no  judgment 
out  of  the  decedent's  goods,  and  the  action  must  be  brought 
declaring  against  him  in  his  right.^  The  judgment  is  ren- 
dered de  bonis  propriis,  and  he  must  respond  accordingly.^ 

But  for  one  to  maintain  such  suit  against  the  representa- 
tive individually,  the  latter  should  have  been  an  actual  party 
to  the  contract  or  transaction.  For,  it  is  said,  an  executor  or 
administrator  is  not  liable,  either  personally  or  in  his  repre- 
sentative character,  for  services  beneficial  to  the  estate  per- 
formed without  his  assent,  after  the  decedent's  death  and 
before  his  own  appointment,  under  contract  with  the  special 
administrator  or  with  one  who  declined  the  trust  of  executor.^ 

§  398.  Exceptional  Instance  of  suing  for  Funeral  Expenses, 
etc.  —  An  action,  however,  may  be  maintained  in  various 
States  against  an  executor  or  administrator,  as  such,  for  the 
funeral  expenses  of  the  deceased  ;  charging  him  thus  in  his 
representative  character,  so  that  judgment  may  be  rendered 
de  bonis  deccdcntis.^  But  the  case  stands  on  its  peculiar 
ground  of  exception;'''  claims  of  this  character  taking  the 

^  Corner  z/.  Shew,  3  M.  &  W.  350;  ^  Luscomb  v.  Ballard,  5  Gray,  403. 

Austin  V.  Munro,  47  N.  Y.  360;   Davis  And   see    Matthews    v.    Matthews,    56 

V.  French,  20  Me.  21;  Myer  v.  Cole,  12  Ala.    292;    Ross  v.  Harden,  44  N.  Y, 

Johns.  349;   Matthews  v.  Matthews,  56  Super.  26;  Tucker  v.  Whaley,  11  R.  I. 

Ala.     292;     supra,    §    256;     Lovell    v.  543. 

Field,  5  Vt.  218;    Harding  v.   Evans,  3  As  to  suing  an  executor  who  is  also 

Port.  221 ;    Baker  v.  Moor,  63  Me.  443.  residuary   legatee,  and  who  has    given 

2  Beaty  v.  Gingles,  8  Jones  L.  302;  bond   to   pay  debts    and    legacies,   see 

Hopkins  v.  Morgan,  7  T.  B.  Mon.  i.  140  Mass.  66;    144  Mass.  238. 

2  Barrv  z/.  Rush.  I   T.  R.  691;   Sum-  ^  Hapgood   v.    Houghton,    ID   Pick, 

ner  v.  Williams,  8  Mass.  199;    Davis  v.  154;   Seip  v.  Drach,  14  Penn.  St.  352; 

French,    20  Me.    21,  per   Shepley,  J.;  Rappelyea    v.    Russell,    i     Daly,    214; 

supra,  §  256.  Campfield   v.    Ely,    13   N.   J.    L.    150; 

*  Seip  V.  Drach,   14  Penn.   St.  352;  Samuel  v.  Thomas,  51  Wis.  549. 

Powell  V.  Graham,  7  Taunt.  585 ;  Corner  "^  Thomas,  J.,  in  Luscomb  v.  Ballard, 

V.  Shew,  3  M.  &  W.  350;    Wms  Exrs.  5    Gray,   405;    Studley   v.    Willis,    134 

1783-  Mass.  435. 

474 


CHAP,  v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.    §  398  « 

priority  of  most  general  debts  originating  with  the  decedent 
himself,  and  being  sui  generis,  nor  depending  wholly  upon 
strict  contracts  with  a  renresentative.  The  modern  English 
doctrine  on  this  point  is,  that  if  the  executor  or  admini.strator 
gives  orders  for  the  funeral,  or  ratifies  or  adopts  the  acts  of 
another  party  who  has  given  orders,  he  makes  himself  liable 
personally  and  not  in  his  representative  capacity  ;  and  such, 
too,  is  the  rule  of  various  States.^ 

§  398  a.  Liability  of  Executor  or  Administrator  on  Negotiable 
Instruments.  —  An  executor  or  administrator  who  makes, 
indorses,  or  accepts  negotiable  paper,  is  personally  liable 
thereon,  although  he  adds  to  his  signature  the  name  of  his 
office.  Nor  does  the  mere  mention  of  his  decedent's  estate 
in  the  instrument,  deprive  it  necessarily  of  its   negotiable 


1  Corner  v.  Shew,  3  M.  &  \V.  350; 
8  Ad.  &  El.  349  n.  ;  Wms.  Exrs.  1788, 
1791;  Ferrin  v.  Myrick,  41  N.  Y.  315. 
As  to  supplying  a  tombstone,  see  25 
Hun,  4.  As  to  necessaries  for  the  fu- 
neral which  some  one  else  ordered,  see 
13  Daly,  347.  And  see  §  \2\, post,  as  to 
funeral  expenses. 

Qu.  whether  valuable  services  ren- 
dered in  taking  care  of  the  effects,  etc., 
after  the  decedent's  death,  and  before 
any  representative  was  appointed,  might 
not  be  brought  within  the  reason  of  this 
same  exception  in  meritorious  instances. 
This  service,  like  that  of  burial,  may  be 
performed  out  of  kindness  or  necessity, 
as  it  were,  and  without  a  previous  con- 
tract, as  by  a  custodian  who  must  search 
out  the  kindred.  See  supra,  §  193; 
Luscomb  V.  Ballard,  5  Gray,  403. 

When  the  law  as  to  remedies  proves 
so  uncertain  as  to  leave  one  in  funda- 
mental doubt  as  to  whether  one  shall 
sue  or  be  sued  in  the  individual  or  rep- 
resentative capacity,  in  a  particular  in- 
stance, the  legislature  should  intervene 
and  make  a  more  flexible  rule.  Among 
numerous  cases  which  might  be  ad- 
duced in  proof  of  the  genuine    uncer- 


tainty which  has  prevailed  in  the  law, 
because  one  must  distinguish  clearly  be- 
tween contracts  of  the  decedent  and  con- 
tracts of  the  decedent's  representative, 
Austin  V.  Munro,  47  N.  Y.  360,  is  worthy 
of  study,  with  the  distinctions  announced 
in  the  opinion  of  the  court.  In  Snead 
V.  Coleman,  7  Gratt.  300,  a  State  court 
appears  to  have  continued  in  a  quandary 
as  to  whether  the  suit  should  have  been 
brought  against  representatives  officially 
or  as  individuals.  It  seems  highly  de- 
sirable that  such  litigation  should  be 
allowed  to  go  at  option  or  in  the  alter- 
native; that  a  joinder  of  a  cause  found- 
ed upon  the  contract  of  an  intestate  with 
one  founded  upon  the  contract  of  the 
representative  should  be  allowed,  or 
that  the  action  itself  should  be  capable 
of  conversion  from  one  form  to  another, 
final  judgment  being  rendered  according 
to  the  facts  and  as  justice  might  require. 
At  present,  there  is  always  great  danger 
that  a  suit  founded  on  a  just  cause  of 
action  may  fall  to  the  ground  because 
of  some  misconception  at  the  outset  as 
to  whether  the  contract  originated  with 
the  decedent  or  the  decedent's  repre- 
sentative.    See  appendix,  post. 


475 


§  39^  «  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

character ;  but  to  have  that  effect  there  must  be  a  direction, 
express  or  imphed,  to  pay  from  that  fund,  and  not  otherwise.^ 
And  in  undertaking  to  bind  the  estate  by  a  note,  and 
failing  for  want  of  authority,  the  representative  binds  himself 
personally.^ 

1  Schmittler  v.  Simon,  loi  N.  Y.  737,  ^  McCalley  v.  Wilburn,  77  Ala.  549. 

and  cases  cited  ;    Higgins  v.  Driggs,  21     And  see  §  258. 
Fla.  103;  Perry  z/.  Cunningham,  40  Ark. 
185. 

476 


CHAP.   VI.]  CO-ADMINISTRATION,    ETC.  §  4OO 


CHAPTER  VI. 

CO-ADMINISTRATION    AND    QUALIFIED    ADMINISTRATION. 

§  399.  Doctrines  of  foregoing  Chapters  apply  to  Qualified 
Trusts.  —  The  doctrines  discussed  in  our  previous  chapters, 
concerning  the  powers,  duties,  and  liabilities  of  the  personal 
representative,  apply,  viutatis  mutandis,  to  all  executors  and 
administrators.  But,  as  we  have  already  observed  in  an 
earlier  part  of  this  treatise,^  administration  is  not  always 
original  and  general,  but  qualified  in  various  instances,  as 
the  circumstances  of  appointment  may  require.  General 
doctrines  require,  moreover,  a  special  adaptation  to  suit 
the  case,  where  two  or  more  are  appointed  to  the  same 
trust.  Co-administration  and  qualified  administration,  there- 
fore, considered  with  reference  to  the  peculiar  powers  and 
responsibilities  which  attach  to  such  appointees,  will  claim 
our  attention  for  the  present  chapter. 

§  400.  Rights,  Duties,  and  Liabilities  of  Co-Executors ;  their 
Title  and  Authority.  —  And,  first,  as  to  the  rights,  duties,  and 
liabilities  of  co-executors  and  co-administrators.  Co-execu- 
tors, unless  the  will  under  which  they  act  directs  otherwise, 
are  to  be  treated  in  law  as  one  and  the  same  individual ; 
and  consequently  whatever  each  one  does  is  taken  to  be 
the  act  of  both  or  all,  their  authority  being  joint  and  entire.^ 
Hence,  too,  if  one  of  them  dies,  the  fiduciary  interest,  being 
joint  and  entire,  will  vest  in  the  survivor ;  this  even,  to 
cite  the  earlier  writers,  without  any  new  grant  of   letters.^ 

1  See  supra,  Part  II.,  c.  4.  the  limitations  which  a  will  may  have 

2  Wms.  Exrs.  911,  946;  3  Bac.  Abr.  imposed  in  this  respect,  see  supra, 
tit.  Executors,  D;    Wentw.  Off.  Ex.  206,     §  51. 

14th    ed. ;     Rigby,   Ex  parte,   19  Yes.  8  Cas.  temp.  Talb.  127;  Wms.   Exrs. 

462;     Edmonds   v.    Crenshaw,    14    Pet.  911.      But   upon  this  point  see  supra, 

166;    Stewart    v.   Conner,  9  Ala.  803;  §  40.     Where  a  co-executor  named  in 

Wilkerson    v.   Wootten,    28    Ga.    568:  the  will  renounces  probate,    the  others 

Gilman  v.  Healy,  55  Me.  120.     As  to  who  qualify  exercise  all   the  authority 

477 


§  400  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

And  this  survivorship  carries  such  sweeping  consequences 
that,  as  equity  precedents  establish,  if  all  the  residue  of  the 
testator's  effects,  after  the  payment  of  debts  and  legacies, 
were  left  to  his  co-executors,  and  one  of  them  should 
happen  to  die  before  the  joint  interest  in  the  residue  was 
severed,  his  share  would  survive  to  the  decedent's  co-execu- 
tor to  the  exclusion  of  his  own  personal  representative ;  ^ 
a  result  most  inequitable,  and  not  to  be  admitted  if,  by 
statute  provision  or  a  fair  construction  of  the  particular 
will,  so  absolute  a  survivorship  may  be  ruled  out.^ 

As  incidental  to  their  joint  and  entire  title,  it  is  held  at 
common  law  that  if  one  of  two  executors  grants  or  releases 
his  interest  in  the  estate  to  the  other,  nothing  shall  pass, 
because  each  was  possessed  of  the  whole  before;^  and, 
furthermore,  that  they  cannot  sue  in  right  of  the  deceased 
upon  a  contract  made  by  a  defendant  jointly  with  one  of 
the  co-executors,  since  this  would  be  like  permitting  a  man 
to  sue  himself.*  But,  while  a  party  bound  in  a  contract  with 
others,  whereby  he  'becomes  both  obligor  or  obligee,  can- 
not maintain  on  such  contract  an  action  at  law  ;  or,  in  other 
words,  cannot  sue  himself  at  law,  if  the  contract  be  joint  ;^ 
he  may  if  it  be  joint  and  several.  On  this  distinction  it 
is  held,  recently,  that  a  note  executed  by  one  of  two  execu- 
tors, in  favor  of  himself  and  his  co-executors,  may  be  enforced 
by  the  two  in  an  action  against  the  indorsers.^ 

Of  two  or  more  executors  under  a  will,  moreover,  each 
is  entitled  to  receive  any  part  of  the  assets,  and  to  collect 


and  incur  all  the  responsibilities  inci-  waive   compensation   cannot   prejudice 

dental  to  the  office.     Su/>r<i,  ^  e,\.  the     rights    of    his    co-executors.       14 

1  Wms.  Exrs.  913;    2  Bro.  C.  C.  220;  Phila.  290. 
3  Bro.  C.  C.  455;   Knight  v.  Gould,  2  ^  Gudolph.  pt.  2,  c.   16,  §   i  ;   Wms. 

My.  &  K.  295.  Exrs.  911. 

2  If   one  of   several  legatees  be  an  *  Godolph.  pt.   12,  §  2;    Wms.  Exrs. 

executor,  his   single    assent  to  his  own  913;   2  Chitt.  539. 

legacy  will  vest  the  title  in  him;   or,  if  ^  Moffat  v.  Van  Millingen,  2  B.  &  P. 

the  subject  be  entire,  and  be  given  to  all  124. 

the  executors,  one  may  assent  sufficiently  *^  Faulkner  v.  Faulkner,  73   Mo.  327. 

to  his  own  proportion,   i  Roll.  Abr.  618;  A  note  given  by  an  executor  in  favor  of 

Wms.  Exrs.  948;  Cole  z'.  Miles,  10  Hare,  himself  and  his  co-executor,  for  money 

179.  of  the  estate  used  bv  himself,  is  not  void 

The  agreement  of   one  executor   to  for  want  of  consideration.     lb. 

478 


CHAP.  VI.]  CO-ADMINISTRATION,    ETC.  §  4OO 

any  debts. ^  An  assignment  or  release,  valid  under  the  gen- 
eral rules  of  administration,  is  valid  when  given  by  any 
one  of  them.2  It  is  held  that  one  executor  may  release  or 
assign  a  mortgage  of  real  or  personal  property  belonging  to 
the  estate  without  the  signature  or  assent  of  his  co-execu- 
tors.^ Or  enter  into  an  amicable  action,  and  submit  to  an 
arbitration.*  Or  compromise  as  any  other  executor  or  admin- 
istrator may  do.^  Or  assign  or  indorse  over  a  promissory 
note  made  payable  to  the  testator.®  Or  settle  an  account 
with  a  debtor,  provided  he  does  so  honestly  and  with  the 
usual  measure  of  prudence."  Or  grant  or  surrender  a  lease 
or  term.^  Or  sell  and  dispose  of  assets  on  behalf  of  all.^ 
Or  assent  sufficiently  to  a  legacy.^*^  Or  discharge  a  security 
taken  for  the  payment  of  a  debt  due  the  estate,  on  a  satis- 
faction made  to  him.^^  In  short,  as  regards  personal  assets, 
any  one  of  two  or  more  co-executors  may  do  whatever  both 
or  all  could  have  done,  and  under  like  qualifications,^-  and 
the  act  of  one  within  the  scope  of  his  duties  binds  the  others. 
While,  however,  one  executor  may  thus  transfer  the  legal 
title  to  property,  and  even  make  a  delivery  not  in  all  re- 
spects effectual  as  to  title,  which  shall,  nevertheless,  give 
the  transferee  every  legal  advantage,  a  court  of  equity 
declines,  wherever  its  assistance  is  invoked,  to  enforce  or 
confirm  an  unjust  transaction  of  this  character ;  ^^  and,  per- 
haps, on  the  suggestion  of  fraud,  collusion,  and  unfair  deal- 

1  Edmonds  v.  Crenshaw,  14  Pet.  166;  ^  Dwight  v.  Newell,     15    111.     ■^2,'^  ; 
Stewart  v.  Conner,  9  Ala.  803.                     Bogert  v.  Hertell,  4  Hill,  492;  Wheeler 

2  As  to  release,  see  Wms.   Exrs.  946;     v.  Wheeler,  9  Cow.  34. 

2  Ves.   Sen.   267;     Shaw  v.  Berry,    35  '  Smith  v.  Everett,  27  Beav.  446. 

Me.  279;    Stuyvesant  v.   Hall,  2  Barb.  *  Simpson   v.    Gutteridge,    i     Madd, 

151;   Devling   v.   Little,    26    Penn.    St.  616.     And  see   11  M.  &  W.  773,   com- 

502;   Hoke  z*.  Fleming,  10  Ired.  L.  263.  menting  upon  Turner  v.  Ilardey,  9  M. 

But  several  releases  by  joint  executors  &  W.  770. 

do    not    bar    their     legal    joint    claim  ^  Cro.   Eliz.   478;    Murrell  v.  Cox,  2 

against  the  debtor.     Pearce  v.  Savage,  Vern.  570.     But  cf.  Sneesby  v.  Thorne, 

51  Me.  410.  7  De  G.  M.  &  G.  399. 

8  Weir  V.  Mosher,  19  Wis.  311;   Son  ^^  Wentw.  Off.  Ex.  413;   Wms.  Exrs. 

V.   Miner,    37    Barb.    466  ;     George  v.  948. 

Baker,  3  Allen,   326.     And  see  Bogert  ^^  People  v.  Keyser,  28  N.  V.  226. 

V.  Hertell,  4  Hill,  492.  12  Bodley  v.  McKinney,  9  Sm.  &  M. 

*  Lank  v.  Kinder,  4  Harring.  457.  339;    Bairy  v.  Lambert,  98  N.  V.  300. 

^  Weir    V.    Mosher,    19    Wis.    311  ;  ^^  Lepard  v.  Vernon,  2  Ves.  &  15.  51; 

Wms.  Exrs.  946,  and  Perkins's  note  Sneesby  t/.  Thorne,  7  DeG.  M.  &G.  399. 

479 


§  401  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

ing,  will  set  aside  or  disallow  the  transaction,  at  the  instance 
of  the  co-executor.^  For  the  acts  of  any  co-executor,  com- 
mitted outside  the  scope  of  an  honest  and  sufficiently 
prudent  administration,  are  not  to  be  sustained  in  courts  of 
equity  or  probate. 

§  401.  The  same  Subject.  —  In  the  settlement  of  an  estate 
by  co-executors,  the  exclusive  custody  and  control  of  the 
assets  vests  in  no  one  of  their  number.  Each  executor  has  a 
right  of  possession  to  the  personal  property,  and  a  right  of 
access  to  the  papers.^  The  act  of  one,  in  possessing  himself 
of  assets,  is  the  act  of  all,  so  as  to  entitle  them  to  a  joint 
interest  in  possession,  and  a  joint  right  of  action  if  they  are 
afterwards  taken  away.^  But  there  may  be  a  contract  between 
joint  executors  concerning  the  funds  of  the  estate  and  man- 
agement, and  this  upon  perfectly  valid  consideration  as  be- 
tween themselves.'*  And,  in  order  to  act  with  becoming 
prudence,  it  is  well  that  the  funds  should  be  kept  so  that 
both  or  all  the  executors  shall  exercise  control  or  supervision 
thereof  together.  Where  such  is  the  case,  any  person  dealing 
with  them  is  bound  upon  notice  to  recognize  their  joint  title. ^ 

It  is  held,  moreover,  that  one  of  two  executors  cannot 
assign  or  indorse  over  a  negotiable  note  made  to  them  both, 
as  executors,  for  a  debt  due  to  their  testator.^  And  the 
modern  course  of  authority  does  not  permit  a  co-executor  to 
bind  the  others  personally  by  his  new  promise  to  pay  in  future 
even  a  debt  of  the  estate  ;  and  such  a  promise,  or  an  admis- 
sion of  indebtedness,  cannot  be  received  in  evidence  against 
his  co-executors  ;  and  the  same  holds  true  where  the  promise 
is  expressed  by  an  instrument  signed  by  one  of  the  executors 

1  Wms.    Exrs.  948,    note  ;   Touchst.  ^  Nation  v.  Tozer,  I  Cr.  M.  &  R.  174, 

484;    Le  Baron  v.  Long  Island  Bank,  per  Parke,  B. 

S3  How.  (N.  Y.)  Pr.  286.  As  to  aiding  *  Berry  v.  Tait,  i  Hill  (S.  C.)  4; 
in  equity  a  deed  made  by  one  co-execu-  Faulkner  v.  P'aulkner,  73  Mo.  327. 
tor,  but  authorized  and  approved  by  the  °  Thus,  if  they  open  a  joint  account 
others  as  merely  an  imperfect  execution  with  a  banker,  both  must  unite  in  a  re- 
ef the  power  given  by  the  will,  see  ceipt  or  check  in  order  to  discharge 
Giddings  v.  Butler,  47  Tex.  535.  him.     De  Haven  v.  Williams,  80  Penn. 

2  Chew's   Estate,    2  Pars.   Sel.   (Pa.)  St.  480. 
153;   Wood  V.  Brown,  34  N.   Y.   337  ;  ^  Smith  v.  Whiting,  9  Mass.  334. 

Hall  V.  Carter,  8  Ga.  388. 

480 


CHAP.   VI.]  CO-ADMINISTR.\TIOX,    ETC.  §  402 

alone. ^  As  to  whether  the  new  promise  of  one  executor  can 
bind  the  estate,  however,  the  decisions  are  found  discordant 
in  jurisdictions  where  a  positive  rule  fixed  by  the  legislature 
is  wanting.^ 

§  402.  Co-Executors;  their  Liability,  etc.  —  Good  faith  and 
the  usual  measure  of  prudence  applicable  to  fiduciaries  should 
characterize  the  conduct  and  dealings  of  co-executors.  In 
administering  the  assets,  each  co-executor  is  at  this  day  often 
held  responsible  for  the  safety  of  the  fund,  so  as  not  to  be 
utterly  excused  from  losses  incurred  by  the  carelessness  or 
misconduct  of  his  fellow.^  A  dishonest,  unauthorized,  or 
imprudent  sale,  transfer,  or  investment  is  no  more  to  be 
sanctioned  where  the  executorship  is  joint  than  where  it  is 
sole.*  And,  inasmuch  as  each  executor  has  an  independent 
right  to  control  and  transfer  the  assets,  one  is  bound  not  to 
be  heedless  as  to  his  co-executor's  conduct,  but  rather,  as 
in  requiring  a  joint  deposit  or  transfer,  or  joint  investment  of 
funds,  to  impose  a  check  upon  the  other's  authority.  For,  if 
an  executor,  by  any  act  or  default  on  his  part,  places  the 
estate  and  its  management  in  the  exclusive  power  of  his  co- 
executor,  he  takes  the  perils  of  the  latter's  maladministration 
upon  himself,  unless  he  exercised  what  American  courts 
would  call  ordinary  prudence.^ 

1  Tullock  V.  Dunn,  Ry.  &  Moo.  416;  Peck  v.  Bottsford,  7  Conn.  172;  Rey- 
Scholey  v.  Walton,  12  M.  &  W.  509;  nolds  v.  Hamilton,  7  Watts,  420.  The 
Forsyth  z*.  Ganson,  5  Wend.  558;  El-  promise  or  acknowledgment  growing 
wood  V.  Diefendorf,  5  Barb.  398.  One  out  of  the  decedent's  original  contract, 
of  several  executors  has  no  power  to  the  difficulty  is  fundamental.  The  Eng- 
charge  the  estate  or  his  co-executor  by  lish  view  is  not  clearly  expressed, 
indorsing  a  note  in  the  name  of  the  Scholey  v.  Walton,  supra.  But  the 
estate,  even  though  it  be  given  in  re-  subject  is  now  controlled  in  that  county 
newal  of  one  indorsed  by  the  testator  by  stat.  9  Geo.  IV.  c.  14,  §  i,  which 
in  his  lifetime.  Bailey  v.  Spofford,  provides  that  the  promise  shall  be  in 
21  N.  Y.  Supr.  86.  See  supra,  §  293,  as  writing,  and  shall  only  affect  the  execu- 
te the  effect  of  a  representative's  prom-  tor  making  it. 

issory  note.  3  De    Haven    v.  Williams,  80  Penn. 

2  .See  Shreve  v.  Joyce,  36  N.  J.  L.  44,     St.  480. 

where   it  is  held  that  it  can.     And  see  *  Le  Baron  v.  Long  Island  Bank,  53 

Emerson   v.  Thompson,  16  Mass.  431;  How.  (N.  Y.)Pr.  286;    Laccy  ?'.  Davis, 

Cayuga    Co.    Bank  v.  Bennett,  5  Hill,  4  Redf.  (N.  Y.)  402;  Case  v.  Abell,    i 

236.     But   the  promise  of  one  will  not  Paige,  393. 

avail  against  the  estate  in   some  States.  *  See   supra,   §    315.     The    English 

481 


§402 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


Thus,  if  an  executor  delivers  or  assigns  securities  to  his 
co-executor  in  order  to  enable  the  latter  to  receive  the  money 
alone,^  or  draws  or  indorses  in  his  favor  a  bill  or  note  to  a 
similar  end,'^  or  leaves  him  free  to  negotiate  a  transfer  or 
make  a  sale  at  his  sole  discretion,  or  gives  him  a  power  of 
attorney  on  his  own  behalf,  thereby  deputing  that  control 
and  supervision  which  the  office  made  it  incumbent  upon  a 
co-executor  to  exercise,  he  cannot  wholly  escape  legal  liability 
for  the  ill  consequences.^  Nor  is  he  exempt  from  a  personal 
liability,  if  he  neglect  unreasonably  enforcing  the  payment  of 
a  debt  which  his  co-executor  owed  the  estate,  and  was  legally 
bound  to  pay.*  But,  if  he  can  show  that  his  own  conduct 
was  within  the  usual  rule  of  prudence  and  good  faith,  under 
all  the  circumstances,  and  that  he  did  not  contribute  to  the 
loss,  upon  such  a  standard  of  liability,  he  is  excused  ;  for  the 
cardinal  doctrine  is  that  co-executors  are  liable  each  for  his 
own  acts  and  conduct,  and  not  for  the  acts  or  conduct  of 
his  co-executors.^ 


cases  may  consistently  treat  the  co- 
fiduciary  as  one  having  no  recompense, 
and  hence,  as  required,  rather  to  exer- 
cise slight  prudence,  like  a  gratuitous 
bailee,  or  so  as  not  to  be  in  "  wilful 
neglect  or  default."  lb.  It  does  not 
appear  that  the  English  precedents  fur- 
nish the  true  standard  for  American 
courts  in  this  respect. 

1  Candler  v.  Tillett,  22  Beav.  236. 

2  2  Bro.  Ch.  114;  Hovey  v.  Blake- 
man,  4  Ves.  608. 

3  Clough  V.  Dixon,  3  M.  &  C.  497; 
Dix  V.  Burford,  19  Beav. 412;  Edmonds 
V.  Crenshaw,  14  Pet.  166;  Sparhawk  v. 
Buell,  9  Vt.  41 ;  Wood  v.  Brown,  34 
N.  Y.  337;  Heath  v.  AUin,  i  A.  K. 
Marsh.  442;  Head  v.  Bridges,  67  Ga. 
227. 

*  Styles  V.  Guy,  i  Mac.  &  G.  422  ; 
Candler  v.  Tillett,  22  Beav.  257  ;  Carter 
V.  Cutting,  5  Munf.  223.  An  executor 
who  allows  his  co-executor  to  gain  un- 
due advantage  over  other  creditors,  is 
liable.  McCormick  v.  Wright,  79  Va. 
524.  So  is  one  who  collects  assets 
sufficient   to  pay  a  debt,  and  then  pays 


them  over  to  his  sick  and  insolvent  co- 
executor.  Knight  V.  Haynie,  74  Ala. 
542. 

^Cro.  Eliz.  318;  Wentw.  Off.  Ex. 
306;  Wms.  Exrs.  1820,  and  note  by 
Perkins;  Williams  v.  Nixon,  2  Beav. 
472  ;  Peter  v.  Beverly,  lo  Pet.  532; 
Perry  Trusts,  §  421;  Douglas  v.  Satter- 
lee,  II  John.  16;  Fennimore  v.  Fenni- 
more,  2  Green  Ch.  292;  Ames  v.  Arm- 
strong, 106  Mass.  18;  Moore  v.  Tandy, 
3  Bibb,  97;  WiUiams  v.  Maitland,  i 
Ired.  Eq.  92;  Kerr  z/.  Water,  19  Ga. 
136;    Call  V.  Ewing,  i  Blackf.  301. 

At  common  law  the  acts  of  each 
executor  within  the  scope  of  his  au- 
thority, are,  as  concerns  administration, 
the  acts  of  all,  with  this  qualification  : 
that  at  common  law  each  was  responsible 
only  for  such  assets  as  came  to  his  own 
hands.  Under  ordinary  circumstances, 
one  of  two  or  more  executors  was  not  to 
be  held  accountable  for  waste  or  other 
misconduct  on  his  associate's  part ;  and 
his  misplaced  confidence  in  the  latter's 
integrity  and  capacity  was  not  allowed 
to  operate  to  his  own  prejudice.    Ames, 


482 


CHAP.   VI.] 


CO-ADMINISTRATION,    ETC. 


§  402 


The  rule  as  thus  announced  may  appear  somewhat  different 
from  that  applied  in  equity  to  co-trustees,  whose  functions, 
for  the  most  part,  as  depending  upon  the  express  terms  of  the 


J.,  in  Ames  v.  Armstrong,  106  Mass.  18. 
But  the  development  of  this  doctrine  in 
courts  of  equity  appears  to  have  estali- 
lisheJ  the  rule  of  the  present  day  upon 
a  somewhat  different  footing,  as  the  te.xt 
indicates;  the  question  coming  to  be  re- 
garded, in  view  of  the  great  extent  to 
which  any  one  of  them  could  practically 
control  and  dispose  of  assets,  rather  as 
involving  the  element  of  contributory 
negligence  or  fraud,  on  the  part  of  the 
executor  who  claims  immunity.  And 
the  view  taken  by  courts  of  probate  and 
equity,  in  passing  upon  the  accounts  of 
executorship,  becomes  more  and  more 
the  material  one  in  such  cases.  Even 
at  common  law,  as  it  is  admitted,  when- 
ever any  part  of  the  estate,  by  any  act 
or  agreement  of  one  executor,  passes  or 
is  intrusted  to  the  custody  of  a  co- 
executor,  they  are  thereby  rendered 
jointly  responsible;  for  the  inference 
arises  that  one,  notwithstanding  his 
power  and  opportunity  to  make  the 
joint  possession  secure,  has  chosen  to 
yield  control  to  the  other.  Ames,  J.,  in 
Ames  V.  Armstrong,  supra.  The  whole 
subject  seems  to  have  been  spun  by 
the  courts  into  a  very  fine  web,  reach- 
ing from  point  to  point,  but  coming 
round  again  to  the  starting-place. 

The  mere  circumstance  that  assets 
came  to  the  hands  of  one's  co-executor, 
does  not,  it  is  held,  render  him  also 
liable.  U.  S.  Dig.  1st  series,  Exrs.  & 
Admrs.  171 1;  Wms.  Exrs.  1821.  But 
it  is  said  to  be  different  where  an  execu- 
tor hands  them  over  to  his  co-executor, 
and  the  latter  misapplies  them.  Dick. 
356;  Macpherson  v.  Macpherson,  i 
Macq.  H.  of  L.  243;  Sparhawk  v.  Buell, 
9  Vt.  41  ;  Edmonds  v.  Crenshaw,  14 
Pet.  166.  Passiveness,  in  not  ^ybstruct- 
ing  the  co-executor  who  gets  control  of 
the  assets,  has  been  considered  as  in- 
volving no  li.Tbility.  11  Ves.  335; 
Candler  v.  Tillett,  22  Beav.  257.     But 


the  exceptions  engrafted  upon  this  state- 
ment have  destroyed  its  efficacy.  I  Mac. 
&  G.  433  «./  Wms.  Exrs.  1822,  1S27. 
To  stand  by  and  see  the  co-executor 
commit  a  breach  of  duty  renders  one 
clearly  liable.  lb.  "  The  rule,"  adds 
Williams,  "  may,  perhaps,  be  stated  to 
be,  that  where,  by  any  act  done  by  one 
executor,  any  part  of  the  representative 
estate  comes  to  the  hands  of  his  co- 
executor,  the  former  will  be  answerable 
for  the  latter,  in  the  same  manner  as  he 
would  have  been  for  a  stranger  whom 
he  had  intrusted  to  receive  it."  Wms. 
Exrs.  1822,  referring  to  Cox's  note  to  I 
P.  Wms.  241;  also  2  Bro.  C.  C.  117; 
Booth  7'.  Booth,  I  Beav.  125;  Styles  w. 
Guy,  I  Mac.  &  G.  422.  Failing  to 
withdraw  money  from  a  banker,  who 
happens  to  turn  out  insolvent,  does  not 
necessarily  charge  a  co-executor,  nor 
indeed  a  sole  executor;  and  so  with 
changing  investments,  originally  justifi- 
alile,  but  which  eventually  prove  unfor- 
tunate ;  or  confiding  in  some  agent  or  a 
co-executor  who  abuses  the  confidence 
placed  in  him.  Wms.  Exrs.  1S25,  1826; 
supra,  §§  321,  323;  Chambers  v.  Min- 
chin,  7  Ves.  193;  Worth  v.  Mc.\den,  i 
Dev.  &  Bat.  Eq.  199;  Adair  v.  Brimmer, 
74  N.  Y.  539.  But  to  intrust  large  sums 
and  large  authority  to  one  notoriously 
insolvent  or  irresponsible  is  a  very  dif- 
ferent matter.  The  question  reverts,  in 
short,  to  the  customary  issue  of  good 
faith  and  prudence,  considering  all  the 
circumstances,  as  in  the  case  of  a  sole 
executor  or  administrator. 

The  understanding  of  all  concerned 
may  have  something  to  do  with  reducing 
liability.  Where  one  who  qualified  as 
co-executor  gave  the  beneficiaries  dis- 
tinctly to  understand  that  he  should  not 
act,  and  all  parties  believed  in  the  sol- 
vency and  probity  of  the  other  executor 
who  received  all  the  assets,  managed  the 
estate  alone  and  prepared  the  accounts, 


483 


§  402  EXECUTORS    AND    ADMINISTRATORS.  FPART  IV. 

will  or  deed  which  created  their  authority,  require  that  all 
should  join  in  a  particular  act.  Consequently,  while  co- 
trustees may  not  be  liable  for  money  which  they  did  not 
receive,  although  they  all  joined  in  the  receipt,  co-executors 
have  usually  been  held  lial^Ic  in  such  a  case  ;  for  the  act  is 
an  unmeaning  one  and  unnecessary,  unless  they  intend 
thereby  to  render  themselves  jointly  answerable  for  the 
money.^  Notwithstanding  the  numerous  refinements  of 
equity  courts  upon  this  rule  (which  Lord  Eldon  deplored), 
the  only  substantial  exception  appears  to  be  that  the  mere 
joining  in  the  receipt  shall  not  have  the  conclusive  effect  of 
charging  both.^ 

The  reconciling  principle  appears  to  be  that  a  co-executor 
who  joins  in  a  receipt  is  bound  by  the  consequences,  to  the 
usual  extent  of  requiring  prudence  and  good  faith  ;  but  that 
the  act  of  so  joining,  though  prima  facie  importing  that  the 
money  came  to  the  hands  of  both,  is  not  conclusive  evidence, 
but  may  be  explained  so  as  possibly  to  exonerate  him. 
Where  the  act  itself  is  such  that,  as  under  a  trust,  all  the 
executors  must  join  in  it,  the  liability  is  placed  rather  on  the 
footing  of  co-trusteeship ;  or,  perhaps,  it  should  be  said  that 
a  court  treats  it  as  not  imprudent  for  one  to  rely  upon  the 
assurance  that  no  transfer  or  misapprobation  can  be  made 
without  his  concurrence  in  the  act.  Thus  would  it  be,  for 
instance,  where  a  power  was  vested  in  both  under  the  will ;  ^ 

he  was  held  not  personally  liable.    Eng-  Monell   v.   Monell,   5  John.    Ch.    283; 

lish  V.  Newell,  42  N.  J.  Eq.  76.     But  Jones's  Appeal,  8  W.  &  S.  143;   Clarke 

where  a  co-executor  with  the  testator's  v.  Jenkins,  3  Rich.  Eq.  318. 
widow  yielded  to  her  wish  to  permit  her         ^  Westley  v.   Clarke,   i    Eden.    357; 

son  to  manage  the  estate,  and  the  son  Doyle    v.    Blake,    2    Sch.  &    Lef.    242; 

managed    badly,    the    co-executor    was  Chambers  v.  Minchin,  7  Ves.  198.     The 

held  liable  as  such  to  other  parties  in  course   of  the    English    precedents   on 

interest;  and  here  he  had  joined  in  exe-  this   subject    is    traced    in    Wms.    Exrs. 

cuting  papers  when  requested.      Earle  1834,  1835.    And  see  Monell  v.  Monell, 

V.  Earle,  93  N.  Y.  104.    Where  a  lawyer  5  John.Ch.  283;    Lord  Eldon's  remarks 

is    co-executor   with   an    unprofessional  in  Walker  v.  Symons,  3  Swanst.  64. 
person,   the    peculiar   confidence    natu-         ^  Smith  z'.  Moore,  6  Dana,  417;  Bank 

rally  reposed   in  him  by  reason  of  his  of  Port  Gibson  v.   Baugh,  9  Sm.  &  M. 

superior  knowledge  is  a  shield  to  the  290;    Kling    v.   Hummer,    2    Pa.    349; 

other  party.     4  Dem.  528.  Carroll  v.  Stewart,  4  Rich.  200.     It  is 

'  Perry   Trusts,   §    421 ;    2   Eq.    Cas.  a  well-established  principle  that  power 

Abr.  456;   Leigh  v.  Barry,  3  Atk.  584;  conferred  by  will  on  two  or  more  execu- 


CHAP.  VI.]  CO-ADMINISTRATION,    ETC.  §  4O2 

or  where  stock  cannot  be  transferred  except  by  the  signatures 
of  all  ;^  or  where  both  must  join  in  a  petition  ;2  or  where  the 
indorsement  or  assignment  of  some  specific  instrument  re- 
quires the  joint  assent  ;  or  where  the  fund  is  deposited  so  as 
to  remain  subject  to  their  joint  check.^  Even  thus,  culpable 
carelessness  in  permitting  the  proceeds  of  the  sale,  or  trans- 
fer, or  assignment,  to  be  paid  to  one,  or  the  joint  check  col- 
lected by  himself  alone,  would  charge  the  co-executor  who 
confided  too  imprudently  in  his  associate.'*  For  funds  he 
suffers  to  be  left  unreasonably  long  in  his  co-executor's  hands, 
or  loans  to  him,  the  executor  is  responsible  if  they  are  mis- 
applied, though  as  far  as  they  are  duly  applied  in  the  course 
of  administration  he  is  indemnified.^  One  executor  has  no 
right  to  rely  upon  the  representations  of  his  associate,  but  is 
bound  to  use  due  diligence  in  ascertaining  for  himself  whether 
those  representations  are  true.^  And  one  may  become  privy 
to  a  misapplication  of  funds  by  his  co-executor,  so  as  to 
become  liable,  when  he  tacitly  suffers  it  to  be  done  without 
making  a  remonstrance  ;  "  for  the  act  of  one  executor  may  be 
considered  as  adopted  by  his  co-executor,  when  the  latter's 
conduct  virtually  amounts  to  an  assent,  however  reluctantly 
given.^  As  a  rule  each  of  two  or  more  co-executors  has  full 
power  of  administration.^ 

tors  or  trustees,  unless  a  different  inten-  *  Croft  v.  Williams,  23  Hun  (N.  Y.) 

tion  is  expressed  in,  or  can  be  properly  I02.     A  loan  by  co-executors  to  one  of 

inferred   from,  the  will   which    confers  them  is  a  breach  of  trust,  rendering  all 

the  power,  cannot  be  legally  and  prop-  liable.     Stickney  v.  Sewell,  i  My.  &  Cr. 

erly  executed,  unless  all  the  co-executors  8;   Wms.  Exrs.  1809. 

or  co-trustees  to  whom   such   power  is  *  Scurfield  v.  Howes,  3  Bro.  Ch.  91 ; 

delegated   join    in    its    execution.     See  11  Yes.  252 ;  Croft  ?/.  Williams,  23  Hun 

Hart  V.    Rust,   46  Tex.   556;    Adair  v.  (N.    Y.)    102;     Lincoln   v.    Wright,   4 

Brimmer,  74  N.  Y.  539.  Beav.  427;   Perry  Trusts,  §  423;    Hays 

^  Chambers  v.   Minchin,  7  Yes.  197;  v.  Hays,  3  Tenn.  Ch.  88. 

Hovey  v.  Blakeman,  4  Yes.  608.     .\nd  ^  Chambers  v.  Minchin,  7  Yes.    197; 

see  Stat.  8  &  9  Yict.  c.  91,  cited  Wms.  Shipbrook    v.    Hinchenbrook,    II    Yes. 

Exrs.  948,  1825.  254;    Perry   Trusts,    §    423;    Clark    v. 

240  N.  J.  Eq.  173.  Clark,  8  Paige,   152.     See  Atcheson  v. 

8  De  Haven  v.  Williams,  80  Penn.  St.  Robertson,  3  Rich.  Eq.  132. 

480.      See  Child  v.  Thorley,  L.   R.    16  MVhitney  ?/.  Phcenix,  4  Redf.  (N.  Y.) 

Ch.    D.    151.       A    New    York    statute  180;    Brown's  Accounting,  15  Abb.   Pr. 

authorizes     the     surrogate     to     require  N.  S.  457. 

money   to  be   deposited  to  joint  credit.  *  Nelson  v.  C.irrington,  4  Munf.  332. 

5  Dem.  414.  ^  A  debtor  of  the  estate  who  makes  pay- 

485 


§402 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


In  short,  an  executor  who,  by  his  culpable  negligence  or 
fraud,  suffers  his  co-executor  to  waste  the  estate,  participates 
in  the  breach  of  trust  so  as  to  render  himself  liable  to  the 
beneficiaries  ;  ^  and  each  case  of  this  kind  must  depend  largely 
upon  its  own  peculiar  circumstances,  taking  into  account  the 
apparent  knowledge  and  acquiescence  of  one  executor  in  the 
acts  and  transactions  of  the  other,  and  the  power  and  control 
which  the  former  may  have  deliberately  permitted  the  latter 
to  exercise.^  And  for  wrongful  knowledge  and  connivance 
at  his  co-executor's  misconduct  he  is  more  strongly  answer- 
able than  for  carelessness  with  honest  intent.-^ 


ment  bond  fide  to  one  of  several  execu- 
tors who  squanders  the  money  so  re- 
ceived, cannot  be  held  to  further  liability ; 
for  each  executor  had  power  to  make 
collections.  Stone  v.  Union  Savings 
Bank,  13  R.  I.  25.  Giving  up  the 
voucher  of  liability  to  the  debtor  dis- 
charges him  the  more  clearly.  Hyatt 
V.  McBurney,  18  S.  C.  199. 

1  Holcombe  v.  Holcombe,  13  N.  J. 
Eq.  413;  Hengst's  Appeal,  24  Penn. 
St.  413;  McDowall  V.  McDowall,  i 
Bailey  Eq.  324;  Adair  z/.  .Brimmer,  74 
N.  Y.  539 ;  Anderson  v.  Earle,  9  S.  C.  460. 

2  Blake  v.  Pegram,  109  Mass.  541; 
Fonte  V.  Horton,  36  Miss.  350;  Clarke 
V.  Blount,  2  Dev.  Eq.  51.  Permitting 
one  executor  to  have  securities  for  a 
sale,  on  his  promise  to  pay  the  proceeds 
into  the  joint  account,  which  promise 
he  failed  to  keep,  is  not  necessarily  such 
culpable  negligence  as  charges  the  other 
co-executors  who  thus  confided,  espe- 
cially if  that  co-executor  was  under 
bonds  or  gave  good  security.  Adair  v. 
Brimmer,  74  N.  Y.  539.  But  where  ex- 
cessive payments  are  made  or  moneys 
drawn  by  one  executor,  with  the  consent 
or  acquiescence  of  the  others,  out  of  a 
fund  which  has  been  collected  and  has 
come  into  their  joint  possession  and 
control,  they  all  become  liable  to  make 
the  excess  good  to  beneficiaries  whose 
rights  under  the  will  are  at  any  stage 
impaired  thereby.  So,  too,  where  an 
executor,  by  his  negligence,  suffers  his 
co-executor  to   receive   and   waste   the 


estate,  when  he  might  by  proper  care 
have  prevented  it,  he  is  liable  to  the 
beneficiaiies  for  the  waste.  lb.  Where 
money  which  should  have  been  invested 
was  permitted  to  accumulate  and  was 
used  and  lost  in  the  business  of  the 
executor  who  received  the  money,  the 
co-executor  was  held  liable;  but  not  for 
the  other  executor's  act  in  pledging 
securities  of  the  estate  for  his  own  bene- 
fit.   Wilmerdingz/.  McKesson,  103  N.  Y. 

329- 

An  executor  cannot  be  charged  in 
his  probate  accounts  with  money  that 
never  came  to  his  hands  but  to  the  hands 
of  his  co-executor;  but  his  liability,  if 
any,  for  negligence  is  enforceable  in 
equity  only.  Duncan  v.  Dawson,  40 
N.  J.  Eq.  535.  And  where  co-executors 
filed  a  joint  account  admitting  a  cash 
balance,  which  was  in  fact  in  the  sole 
charge  of  A.,  and  B.  died  four  years 
after;  and  six  years  after  A.'s  death  B. 
absconded,  having  been  of  good  repute; 
and  three  years  later  an  attempt  was 
made  to  charge  A.'s  estate;  the  court 
refused  such  relief.  Young's  Appeal, 
99  Penn.  St.  74.  Where  two  executors 
send  merchandise  {e.g.  cotton)  abroad 
to  be  sold,  either  may  draw  for  the  pro- 
ceeds of  sale;  and  if  one  draws  and 
misappropriates,  the  latter  unless  at 
fault  is  not  liable.  Tompkins  v.  Tomp- 
kins, 18  S.  C.  I. 

3  Wilmerding  v.  McKesson,  103  N.  Y. 
329.  Good  faith  may  keep  him  from 
being  charged  compound  interest. 


486 


CHAP.  VI.]  CO-ADMINISTRATION,    ETC.  §  403 

But  one  of  several  executons  has  no  inherent  authority 
to  borrow  money  without  the  assent  of  tiie  others  ;  nor  is 
such  assent  to  be  assumed  from  the  fact  that  the  loan  pro- 
cured was  for  the  benefit  of  the  estate.^  It  is  held  that  one 
cannot  alone  create  a  pecuniary  liability  liy  his  purchase.^ 
And  that  where  one  knows  of  a  superior  debt,  and  conceals 
the  fact  from  his  co-executor,  the  latter  shall  not  be  con- 
sidered guilty  of  a  devastavit,  by  paying  the  inferior  debt.^ 
For  the  proceeds  of  a  claim,  known  to  one  only  of  the  co-ex- 
ecutors, and  collected  by  him,  or  for  other  assets  coming  to 
his  secret  possession,  he  alone  ought  prima  facie  to  be  held 
accountable.  In  general,  therefore,  where  an  executor  per- 
forms acts  outside  the  usual  scope  of  authority  incidental  to 
administration,  thereby  rendering  himself  and  not  the  estate 
immediately  liable,  it  can  usually  impute  no  blame  to  his  co- 
executor,  who  was  ignorant  thereof,  that  the  latter  took  no 
precaution  to  save  the  estate  from  loss ;  and  hence,  such 
co-executor  is  not  to  be  held  responsible,  unless,  at  all  events, 
he  was  culpably  careless  in  procuring  knowledge  of  the  trans- 
action, or  in  acting  upon  such  knowledge  after  he  had  gained 
it.  For  his  own  fraud  alone,  or  his  own  negligence,  whether 
as  a  contributory  or  otherwise,  should  each  executor  be  held 
chargeable.* 

§  403.  Co-Executors  ;  Actions  by  and  against.  —  All  execu- 
tors should  join  in  bringing  actions  on  behalf  of  the  estate,^ 

*  Bryan  v.  Stewart,  83  N.  Y.  270.  ^  Wms.  Exrs.  956,  1867,  and  Perkins's 

2  Scruggs  V.  Driver,  13  Ala.  274.  note;    i  Chitty  PI.  i6th  Am.  ed.  21,  23; 

8  Hawkins  v.  Day,  Ambl.  162.  Bodle  v.  Hulse,  5  Wend.  313.     Advan- 

■•  Directions   in  a  will,  which  vest  a  tage  should   be  taken    of  non-joindec, 

peculiar  confidence  and  control  of  assets  however,  by  a   plea   in  abatement,     i 

in  one  of  the  executors,  may  lie  set  up  Saund.  291 ;    i  Chitty  PI.  i6th  .Vm.  ed. 

by   the    co-executor   as    relieving    him  23;    Packer  v.  Willson,  15  Wend.  343; 

specially   of    an    abuse    by    the    other  Wms.   Exrs.    1868.     The   common  law 

which   was   without   his  own  participa-  appears  to  have  insisted  that  even  those 

tion.     Vanpelt  v.  Veghte,   14  N.  J.  L.  neglecting  or  renouncing  probate  should 

107.     Where  the  testamentary  functions  join  in  the  action,    i  Salk  3;    900.373; 

are  divided  by  the  will,  and  each  cun-  Creswick  v.  Woodhead,  4  M.&  Gr.  8ii. 

fines  himself  to  his  allotted  functions,  the  But   this  formality  is  inconsistent  with 

liability  appears  to  be  several  and  not  equity  practice,  and,  indeed,  with  our 

joint.     Girod  v.  Pargoud,  II  La.  Ann.  whole  modern  theory  of  probate,  which 

329.  insists  that  only  executors  who  qualify 

487 


§  403  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

and  correspondingly  should  be  sued  together.  But  if  one 
executor  contracts  alone  on  his  own  account,  it  would  appear 
that  he  must  sue  alone  on  such  contract,  notwithstanding 
the  proceeds  recovered  will  be  assets.^  And  upon  a  sale 
of  assets  made  by  himself  alone,  he  doubtless  may  sue  for 
the  price,  not  naming  himself  executor  ;^  so,  if  goods  be  taken 
out  of  the  possession  of  one,  he  may  sue  alone  to  recover 
them.^ 

As  a  rule,  co-executors  cannot  sue  or  be  sued  at  law,  by 
one  another.*  But  here,  as  elsewhere,  we  speak  of  co-execu- 
tors in  the  modern  sense,  that  they  have  all  accepted  and 
qualified  themselves  for  the  trust.^  In  equity,  contrary  to 
the  rule  of  law,  one  executor  may  sue  another ;  and  courts 
of  equity  will  entertain  such  proceedings  for  the  purpose 
of  making  a  delinquent  executor  liable  to  his  co-executor, 
to  force  an  account,  to  complete  the  foreclosure  of  a  mort- 
gage, and  otherwise  where  justice  requires  it,  and  there  is  no 
adequate  redress  at  law.^  In  some  States  it  is  now  held  that 
an  executor  may  sue  his  co-executor  on  the  latter's  express 


and  receive  the  probate  credentials  shall  ^  Wms.  Exrs.  1869.    See  supra,  §  281. 

be  required  or  entitled  to  sue.     Davies  *  Wentw.   Off.   Ex.  75;    Wms.  Exrs. 

V.   Williams,    I    Sim.    8;    Thompson   v.  957. 

Graham,    I    Paige,    384;     Rinehart   v.  °  Thus,  a  creditor  of  the  deceased  who 

Rinehart,   15  N.  J.  Eq.  44;    Heron  v.  is  made  an  executor  by  the  will,  and 

Hoffner,  3  Rawle,  393;  Alston  z^.  Alston,  accepts   the   office,   cannot   sue    his   co- 

3  Ired.  447.  Modern  practice  acts  are  executor  on  the  demand.  Saunders  v. 
to  the  same  purport.  Moore  w.  Willett,  Saunders,  2  Litt.  314;  Martin  z'.  Martin, 
2  Hilt.  522.  And  in  England,  under  13  Mo.  36.  But  if  he  renounced  the 
the  recent  probate  act,  the  rule  has  trust  in  effect,  he  can;  for  he  is  then 
been  altered  so  as  to  harmonize  with  no  executor.  Dorchester  v.  Webb,  W. 
this  theory.  Wms.  Exrs.  286;  Act  20  Jones,  345;  Wms.  Exrs.  957,  and  Per- 
&  21  Vict.  c.  77,  §  79.  Co-executors,  kins's  note;  Hunter  5^.  Hunter,  19  Barb, 
when  sued,  may  plead  differently.    Wms.  631. 

Exrs.    1942;    I    Stra.   20;     i    Roll.  Abr.  ^  Peake    v.    Ledger,    8    Hare,    313; 

929;    Geddis  z/.  Irvine,  5  Penn.  St.  308.  Case's  Appeal,    35    Conn.    1 17;     Wms. 

Where  one  of  two  co-executors  presents  Exrs.  1911,  and  Perkins's  note;    Storms 

his   account  the   other  may  contest   it.  v.  Quackenbush,  34  N.  J.  Eq.  20I ;    Mc- 

4  Dem.  364.  Gregor  v.  McGregor,  35  N.  Y.  218;  35 

1  Heath  v.  Chilton,  12  M.  &  W.  N.  J.  Eq.  374;  4  N.  J.  L.  189.  But  not 
632.  where  the  party  who  comes  into  equity 

2  Brassington  v.  Ault,  2  Bing.  177;  has  a  bad  standing.  Bowen  t^.  Richard- 
Wentw.  Off.  Ex.  224;  Wms.  Exrs.  911 ;  son,  133  Mass.  293;  King  v.  Shackle- 
Aiken  v.  Bridgman,  37  Vt.  249;    Lay-  ford,  13  Ala.  435. 

cock  V.  Oleson,  60  111.  30. 

488 


CHAP.   VI.]  CO-ADMINISTRATION,    ETC.  §   4O5 

promise  ;  ^  and  in  other  special  in.stanccs.2  Equity  may  be 
invoked  to  relieve  one  executor  from  the  fraudulent  miscon- 
duct of  his  co-executor,  and  to  enjoin  maladministration  from 
being  committed.^ 

§  404.  Rights,  Duties,  and  Liabilities  of  Co- Administrators.  — 
In  respect  of  rights,  duties,  and  liabilities,  co-administrators 
stand  upon  the  same  footing  as  co-executors  ;  with,  of  course, 
the  difference  that  their  functions,  being  defined  by  general 
and  positive  law,  are  scarcely  capable  of  special  variation. 
Co-administrators  are  to  be  regarded  in  the  light  of  an  in- 
dividual person.  Their  interest  is  joint  and  entire  ;  the  acts  of 
one  in  respect  of  administration  are  taken  to  be  the  acts  of 
all;*  and  as  to  liability  for  one  another's  acts,  the  doctrine 
corresponds  to  that  of  co-executorship.^  An  agreement 
between  co-administrators  that  one  of  them  alone  shall  man- 
age the  estate  is  pronounced  void  as  against  public  policy.^ 
Joint  administration  is  a  trust  never  to  be  forced  upon  per- 
sons unwilling  to  serve  together.^ 

§  405.   Survivorship  among  Co-Executors  or  Co-Administrators. 

—  The  authority  of  an  executor,  as  we  have  observed,  is  not 

1  Phillips  V.  Phillips,  I  Stew.  (Ala.)  McCord,  492;  Murray  v.  Blatchford,  I 
yi.  Wend.  583.     And  see  Rick  v.  Gilson,  I 

2  Where  one  of  the  co-executors  gives  Penn.  St.  54.  But  a  note,  being  made 
the  debtor  a  direction  in  violation  of  payable  to  the  co-admiiiistrators,  one 
his  duty,  and  refuses  to  join  in  a  suit  alone  cannot  assign  it.  Sanders  v. 
for  the  debt,  the  other  executor  may  sue  Blain,  6  J.  J.  Marsh.  446.  And  as  to 
for  the  debt,  and  join  his  co-executor  part  payment  to  one  of  several  admin- 
as  defendant.  Strever  v.  Feltman,  I  istrators,  see  GuUedge  i/.  Berry,  31  Miss. 
Thomp.  &  C.  (N.  Y.)  277.  346. 

8  Nason  v.  Smalley,  8  Vt.  118;    Elm-  ''  Johnson  v.  Corbett,  11  Paige,  26^; 

endorf  v.  Lansing,  4  Johns.   Ch.   562;  Jeroms  v.  Jeroms,   18  Barb.  24.     \J 

Sheehan  v.  Kennelly,  32  Ga.  145.  Hanlwicke  once  attempted  a  distina 

A  desirable  course,  in  modern  pro-  as  between  co-executors  and  co-adnin. 
bate  practice,  where  a  co-executor  mis-  trators,  the  latter  being  apjiointed  solely 
behaves  or  becomes  unsuitable  for  the  by  the  ordinarv.  Hudson  ?/.  Hudson, 
trust,  is  to  procure  his  removal  or  resig-  I  Atk.  460.  But  the  dictum  was  after- 
nation.  See  supra,  §  154;  Hesson  v.  wards  disapproved.  Jncomb  ?'.  Mar- 
Hesson,  14  Md.  8.  wood,  2  Yes.  Sen.  268;  Smith  v.  Kverett, 

*  One  of  two  joint  administrators  may  27    Beav.  445;  Wms.   Exrs.  050.     But 

release  a  right  of  action  which  belonged  see  Gordon  v.  Finlav,  3  Hawks.  239. 

to  the  decedent.     Bryan  v.  Thompson,  ^  Wilson  v.  Lineberger,  04  N.C.  641. 

7  J.  J.  Marsh.  587;   Gage  v.  Johnson,  i  "  Brubaker's  Appeal,  98  Pcnn.  St.  21. 

489 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


tcrminctl  by  the  death  of  his  co-e.xecutor,  but  survives  to  him.^ 
And  so,  too.  is  it  with  co-administrators.^  Where,  however, 
the  will  gives  a  power  (as  for  selling  lands)  to  several  execu- 
tors, and  one  of  them  dies,  it  has  been  a  question  whether 
the  survivor  or  survivors  can  exercise  that  power ;  but  ju- 
dicial inclination  must  be  to  decide  in  the  affirmative,^  wher- 
ever the  terms  of  the  will  admit  of  a  favorable  construction.'* 
A  power  to  sell  which  arises  from  implication,  instead  of 
being  expressed,  is  held  to  survive,  as  among  co-executors, 
in  the  same  manner.^  Even  where  the  power  itself  is  ex- 
tinguished, equity  will  interpose  to  avert  mischievous  con- 
sequences, by  compelling  the  person  having  the  legal  estate 
to  execute  it.^ 

The  personal  representative  of  a  deceased  co-executor  can- 
not, according  to  the  old  rule  of  common  law,  be  sued  by  his 
survivor  in  the  trust,  for  a  debt  due  to  their  testator,"  nor  in 
respect  to  a  breach  of  trust.  But  our  modern  practice  acts 
relax  this  doctrine  to  a  considerable  extent.^  In  equity, 
moreover,  the  surviving  executor,  if  himself  innocent  of  par- 


'  Flanders  v.  Clarke,  3  Atk.  509; 
supra,  §51;  Anderson  v.  Stockdale, 
62  Tex.  54.  An  executor  appointed  by 
the  surviving  executor  in  the  place  of 
the  deceased,  under  a  provision  in  the 
will,  is  also  clothed  with  the  trust  estate 
in  the  place  of  his  predecessor.  Mul- 
ford  V.  Mulford,  42  N.  J.  Eq.  68. 

2  Cas.  temp.  Tall).  127;  Wms.  Exrs. 
911,951.  It  is  thus,  in  general,  where 
one  of  the  representatives  is  removed  or 
allowed  to  resign  the  trust.  See  supra, 
§  41 ;   Shelton  v.  Homer,  5  Met.  462. 

8  Wms.  Exrs.  954-956  ;  Co.  Litt.  113 
a,  and  Hargrave's  note;  i  Sugd.  Pow. 
144,  6th  ed.;  Brassey  v.  Chalmers,  16 
Beav.  231 ;   s.  c.  4  De  G.  M.  &  G.  528. 

*  I  Sugd.  Pow.  141 ;  Wms.  Exrs.  7th 


Com.  325-327;  Treadwell  v.  Cordis,  5 
Gray,  341 ;  Peter  v.  Beverly,  10  Pet. 
532;  Wms.  Exrs.  955,  and  Perkins's 
note. 

•>  Sugd.  Pow.  144;  Wms.  Exrs.  956. 
For  co-executors  to  execute  a  power 
in  favor  of  one  of  the  co-executors 
named,  who  has  renounced  or  resigned, 
appears  upon  some  controversy  to  be 
legal.  Mackintosh  v.  Barber,  i  Bing. 
50.  But  equity  may  well  refuse  coun- 
tenance to  an  execution  of  this  kind,  as 
being  contrary  to  good  policy  and  a  tes- 
tator's presumed  intention.  Shelton  v. 
Homer,  5  Met.  467;   Wms.  Exrs.  953. 

"  Wentw.   Off.   Ex.  75;   Wms.  Exrs. 

957- 

8  When  an  executor  or   administra- 


ed.  954;  Gould  v.  Mathers,  104  Mass.  tor  dies,  resigns,  or  is  removed,  the  sur- 
283.  Where  the  number  of  co-execu- 
tors is  lessened  by  one  renouncing 
probate  a  similar  question  of  testamen- 
tary construction  may  arise.  Granville 
V.  McNeile,  7  Hare,  156. 

*  Wms.   Exrs.    655,  955;    Forbes    v. 
Peacock,    II    M.    &    W.  630;  4   Kent 

490 


vivor,  as  rightfully  entitled  to  assets, 
may  sue  him  or  his  estate  at  law ;  at 
least  if  it  be  upon  a  promissory  note  or 
instrument  executed  by  the  late  associ- 
ate. Hendricks  v.  Thornton,  45  Ala. 
299. 


CHAP.  VI.]  CO-ADMINISTRATION,    ETC.  §  406 

ticipation  in  the  wrong,  may  file  a  bill  to  have  set  aside  a 
transaction  committed  in  breach  of  trust,  by  his  associate, 
during  his  lifetime;^  nor,  as  it  is  held,  does  the  fact  of  his 
having  taken  out  administration  upon  the  estate  of  the  ex- 
ecutor who  misconducted  in  the  trust,  disqualify  him  from 
maintaining  his  suit.^  Redress  is  granted  by  equity  in  other 
instances,  on  behalf  of  the  surviving  executor  or  executors.^ 

So,  too,  is  a  bill  in  equity  maintainable  by  the  personal 
representative  of  one  executor  or  administrator  against  the 
surviving  executor  or  administrator,  for  account  and  settle- 
ment of  affairs  arising  out  of  the  joint  administration.* 

§  406.  Liability  of  Co-Executors  and  Co-Administrators  on 
Bonds ;  Joint  or  Several  Bonds.  —  Where  co-executors  or  co- 
administrators qualify  by  giving  bond  to  the  judge  of  probate, 
as  they  are  usually  in  modern  practice  compelled  to  do 
before  letters  can  issue  to  them,^  the  form  of  the  bond  ex- 
ecuted may  affect  very  seriously  their  liability,  and  that  of 
their  sureties,  to  persons  interested  in  the  estate.  Co-ex- 
ecutors or  co-administrators,  who  give  a  joint  and  several  bond, 
render  themselves  jointly  and  severally  liable  as  principals  for 
waste  committed  by  either,  though  without  fault  upon  the 
part  of  both,  and  for  the  proper  administration  of  all  assets 
which    come    to    their    possession    and    knowledge.^      This 

1  See,  as  to  setting  aside  a  mortgage  *  Supra,  §  145. 
of  assets,  made  by  the  deceased  execu-  ^  Brazer  7^.  Clark,  5  Pick.  96;  Hugh- 
tor  in   breach  of  trust,  Miles  t/.  Diirn-  lett  v.  Hughlett,  5  Humph.  453;  New- 
ford,  2  De  G.   M.  &  G.  641.     And  see  ton  v.  Newton,  53  N.  H.  537;  Marsh  v. 
Turner  w.  Wilkins,  56  Ala.  173.  Harrington,    18   Vt.    150;     Pearson    v. 

^  Miles  V.  Durnford,  supra.           '  Damngton,  32  Ala.  227.     Nor  can  one 

^  As  for  enforcing  a  decree  against  allege    that    the    other   took    exclusive 

the  late  co-executor,  see  Chew's  Appeal,  possession,  and    that    no   assets    came 

2  Grant  (Pa.)  294.  into  his  own   hands.     State  v.  Hyman, 

*  Huff  !».  Thrash,  75  Va.  546.     And  72  N.  C.  22.     Where  two  or  more  per- 

see  Fitzsiinmons   v.  Cassell,  98  111.  332.  sons    are    appointed   and    qualified    as 

An    administrator     cannot    maintain    a  executors,  and  one   is  guilty  of  a  dn;as- 

suit  in  equity  to  compel  his  co-adminis-  tavit,   after  which  his  co-executors    re- 

trator  to    account    for  and  pay  over  to  sign,  and  he  executes  a  new  bond,  such 

him  certain    claims    alleged    to  be   due  co-executors  are  primarilv  liable  for  such 

from  the    defendant    as    delator   to    the  devastavit.     Rostick   v.  Elliott,  3   Head. 

estate.       Whiting   v.   Whiting,   64    Md.  507.     As  to  the  rule  where  the  remain- 

157.       For  counter-claims   would    here  ing   executor   resigns,  and  one    of   his 

arise,  and  the  suit  is  an  obstruction  to  a  sureties    is  appointed    administrator  de 

proper  settlement.  bonis  non  with  the  will  annexed,  and 

491 


§  407  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

liability  covers  all  breaches  of  the  bond  and  devastavit,  oc- 
curing  while  the  joint  relation  continues.^ 

Chancery  will  enforce  where  it  may,  a  just  contribution  as 
between  the  joint  executor  in  all  such  cases.^  And  such 
joint  parties  are  responsible  each  for  the  acts  of  the  other 
before  the  sureties  on  their  joint  bond.'^ 

Neither  co-executors  nor  co-administrators,  we  may  add, 
are  compelled  to  give  a  joint  bond  ;  they  may  give  either 
separate  or  joint  bonds  at  their  discretion,  as  the  statutes  of 
various  States  expressly  permit  ;  and  the  effect  of  giving  a 
separate  bond  is  to  leave  each  co-executor  or  co-administra- 
tor simply  liable  for  his  own  default  or  misconduct,  under  the 
qualifications  set  forth  in  the  preceding  sections."* 

§  407.  Rights,  Duties,  and  Liabilities  of  Administrator  w^ith 
the  Will  annexed.  —  Secondly,  as  to  the  rights,  duties,  and 
liabilities  of  an  administrator  with  the  will  annexed.  From 
what  has  been  elsewhere  said,^  it  may  be  gathered  that  such 
rights  and  duties  of  an  executor  as  result  from  the  nature  of 
his  office  must  devolve  upon  an  administrator  with  the  will 
annexed ;  not,  however,  an  authority  necessarily  connected 
with    some    personal    trust    and    confidence    reposed   in    the 

sufficient  indemnity  is  given  against  the  form  responsible  for   maladmiiiisiration 

former  devastavit,  see  ib.  of  the  survivor  happening  after  the  de- 

1  Towne  z/.  Ammidown,  2oPick.  535;  cease  of  the  former,  notwithstanding  a 
Brazer  v.  Clark,  5  Pick.  96.  joint  and  several  bond  with  sureties  was 

2  Marsh  v.  Harrington,  18  Vt.  150;  given.  Brazer  v.  Clark,  5  Pick.  96. 
Conner  v.  Mcllvaine,  4  Del.  Ch.  30.  And  if  the  survivor  neglects  to  pay  over 
And  see  Garnett  v.  Macon,  6  Call,  308.  the  amount  due  to  a  legatee,  in  conse- 

Notvvithstanding  any  ulterior  liability  quence  of  which  the  sureties  pay  it,  the 

which  one  executor  or  co-administrator  sureties    cannot    enforce    indemnity    or 

may  have  incurred  by  reason  of  having  contribution  against  the  personal  repre- 

executed   a  joint    bond,  the    fact   being  sentatives,  heirs,  or  devisees  of  the  de- 

that  he  has  not  intentionally  or  other-  ceased  executor.    Towne  v.  Ammidown, 

wise  contributed  to  a  devastavit  by  his  20  Pick.  535. 

co-executor   or    co-administrator,    since  '^  Jamison  v.  Lillard,    12    Lea,   620. 

deceased,   equity   will    take   cognizance  When  two  or  more  execute  a  joint  bond, 

of  his  suit  against  the  personal   repre-  they  stand   in  the   relation  of  principal 

sentatives    of    his    deceased    associate,  and    surety  ;    each   as    principal    quoad 

founded  on  the  latter's  devastavit,  and  his  own   acts,  and   as   surety  quoad  the 

make  such  decree  as  may  be  appropri-  transactions  of  others.     76  Va.  85. 

ate.     Turner    v.  Wilkins,   56   Ala.    173.  ■•  Mass.  Pub.  Stats,  c.  143,  §  3. 

But  it  is  held  that  the   representatives  ^  Supra,  §  123. 
of  one  joint   executor   are  not   in   any 

492 


CHAP.   VI.]  QUALIFIED    ADMINISTRATION.  §  4O7 

executor  by  the  testator.^  A  special  commission  or  trust 
power,  conferred  by  the  will  upon  the  executor,  does  not,  in 
fact,  vest  in  such  administrator  unless  by  implication  from 
the  language  of  the  will.  Thus,  a  discretionary  power  to  sell 
lands  given  to  one's  executor  will  not  vest  in  the  adminis- 
trator with  the  will  annexed,  whether  the  executor  exjjrcssly 
named  died,  renounced,  or  failed,  from  some  reason,  to 
qualify,^  or  no  executor  was  named  at  all.^  So,  where  prop 
erty  is  bequeathed  to  one's  executors,  to  be  held  in  trust  for 
specified  objects,  an  administrator  with  the  will  annexed  can- 
not as  such  fulfil  the  trusteeship.*  Nor  has  an  administrator 
with  the  will  annexed  any  right  to  receive  a  fund  given  in 
personal  tru.st  under  the  will  for  the  support  of  the  testator's 
widow.^  Nor  to  carry  on  the  testator's  business  under  a  tes- 
tamentary power,  where  that  power  appears  to  have  been 
bestowed  upon  personal  confidence.^  Where,  however,  a 
devise  is  made  in  trust  to  the  executor  named,  this  need  not 
preclude  an  administrator  with  the  will  annexed  from  selling 
the  land,  under  an  order  of  court,  for  payment  of  the  testa- 
tor's debts,  should  a  suitable  emergency  arise  ;  for  this  is  in 
pursuance  simply  of  administrative  functions  annexed  to  the 
office,  and  not  the  personJ 

Unlike  the  executor,  moreover,  an  administrator  with  the 
will  annexed  has  no  authority,  as  it  is  held  in  some  States, 
to  administer  upon  any  portion  of  the  estate  of  the  testator 
not  disposed  of  by  the  will.^ 

1  Farwell  v.  Jacobs,  4  Mass.  634;  Schwartz,  47  Penn.  St.  503;  Evans  v. 
Bain  v.  Matteson,  54  N.  Y.  663;  Syme  Blackiston,  66  Mo.  437.  An  <  if  the 
V.  Broughton,  86  N.  C.  153.  language  of  the  will  shows  a  disposition 

2  Nicoll  V.  Scott,  93  111.  529;  Lucas  on  the  testator's  part  to  permit  whomso- 
V.  Doe,  4  Ala.  679;  Brown  v.  Mobson,  ever  should  execute  the  will  to  execute 
3  A.  K.  Marsh.  380;  McDonald  v.  the  power,  the  administrator  with  the 
King,  I  N.  J.  L.  432;  Conklin  v.  Eger-  will  annexed  may  execute  it.  Jones  ?'. 
ton,  21  Wend.  430;  25  lb.  224;  Belcher  Jones,  2  Dev.  Eq.  387.  And  see  7 
V.  Belcher,    11    R.  L    226;    Knight  v.  Heisk.  315;    32  Cal.  436. 

Loomis,    30    Me.    204;     Vardeman    v.  *  Brush  v.  Young.  28  N.  J.  L.  237. 

Ross,  36  Tex.  III.  *  Warfield  71.  Brand,  13  Bush.  77. 

^  Hall  V.  Irwin,  2  Gilm.  176.     There  ^  Ruhottom  v.  Morrow,  24  Ind.  202. 

are  local  statutes,  however,  which  change  ^  Dunning  v.  Ocean  Nat.  Bank,  61 

this  rule  more  or  less  specifically.    Hes-  N.  Y.  497. 

ter  ?/.   ITnster,    2  Ired.  Eq.   330;    Brown  *•  Harner  t'.  Smith,  9  Ga.  461 ;    Syme 

V.  Armistead,  6  Rand.  594;   Keefer  v.  v.  Broughton,  86  N.  C.   153.     And  see 

40^ 


§408 


EXECUTORS    AND    ADMINISTRATOR'S  [PART  IV. 


§  408.  Rights,  Duties,  and  Liabilities  of  an  Administrator  de 
Bonis  non.  —  Thirdly,  as  to  the  rights,  duties,  and  liabihties 
of  an  administrator  de  bonis  non}  Whether  administration 
dc  bonis  jion  is  taken  upon  a  testate  or  intestate  estate,  there 
is,  in  respect  of  powers  and  responsibihty,  no  essential  differ- 
ence of  principle ;  only  that,  in  the  former  instance,  the 
administration  of  the  estate  becomes  completed  by  one  whose 
scopJe  of  authority  is  that  of  administrator  with  the  will 
annexed,  and,  in  the  latter,  by  a  simple  administrator.  The 
grant  of  administration  de  bonis  non  confers  upon  the  person 
so  appointed  a  legal  title  to  all  the  goods,  chattels,  rights, 
and  credits  of  the  deceased,  which  were  left  unadministered 
by  his  predecessor ;  2  and  this  clearly  includes  all  chattels 
and  chattel  rights  of  the  decedent  not  already  disposed  of  or 
converted  into  money  by  a  predecessor,  whether  of  the  cor- 
poreal or  incorporeal  kind. 

All  the  personal  estate  which  has  not  already  been  admin- 
istered, but  remains  capable  of  identification,  belongs  to  the 
administrator  de  bonis  non  specifically.     Such  property  he  may 


Owens  V.  Cowan,  7B.  Mon.  152;  Mont- 
gomery V.  Millikin,  Sm.  &  M.  151; 
Moody  V.  Vandyke,  4  Binn.  31  ;  Dray- 
ton V.  Grimke,  i  Bailey  Eq.  392;  Perry 
V.  Gill,  2  Humph.  218.  But  this  rule  is 
held  inconsistent  with  the  policy  of  the 
New  York  legislation  as  to  such  admin- 
istrators. Sullivan  v.  Fosdick,  17  N.  Y. 
Supr.  173. 

An  administrator  with  the  will  an- 
nexed is  sul:)ject  to  the  provisions  of 
law  applicable  to  other  administrators, 
except  so  far  as  the  distribution  of  the 
estate  is  directed  by  the  will.  Brown, 
Ex  pai-ie,  2  Brad.  (N.  Y.)  22.  As  to 
the  liability  of  such  administrator  and 
his  sureties  upon  the  bond  given,  see 
Murphy  v.  Carter,  23  Gratt.  477; 
Strolher  v.  Hull,  ib.  652.  For  the  lia- 
bility of  co-administrators  with  the  will 
annexed,  see  §  402;  Adams  v.  Cleaves, 
ID  Lea,  367. 

1  See  supra,  §  128,  as  to  the  appoint- 
ment nf  such  administrators. 

2  Wms.  Exrs.  915,  961;   Wentw.  Off. 


Ex.  462;  I  Salk.  306;  Shackelford  v. 
Runyan,  7  Humph.  141 ;  Kelly  v.  Kelly, 
9  Ala.  908;  Paschall  v.  Davis,  3  Ga. 
256;  American  Board's  Appeal,  27 
Conn.  344;  Gregory  v.  Harrison,  4 
Fla.  56;  Gilbert  v.  Hardwick,  II  Ga. 
599;  Newhall  v.  Turney,  14  111.  338; 
Shawhan  v.  Loffer,  24  Iowa,  217;  Car- 
roll V.  Connet,  2  J.  J.  Marsh.  195; 
Alexander  v.  Stewart,  8  Gill  &  J.  226; 
Harney  v.  Dutcher,  1 5  Mo.  89;  Morse 
V.  Clayton,  13  Sm.  &  M.  373;  Mc- 
Mahon  v.  Allen,  4  E.  D.  Smith,  519; 
Potts  V.  Smith,  3  Rawle,  361;  Bell  v. 
Speight,  II  Humph.  451;  Meiriam  v. 
Hemmenway,  26  Vt.  565.  To  issue 
letters  de  bonis  non  while  a  final  settle- 
ment remains  in  full  force  is  void  and 
may  be  revoked  by  the  court  of  its  own 
motion.  103  Ind.  223;  supra,  §  153. 
But  where  such  letters  are  collaterally 
attacked  on  the  ground  that  there  was 
no  vacancv,  the  fact  that  there  was  no 
vacancy  should  be  affirmatively  shown. 
70  Ala.  140. 


494 


CHAP.   VI.]  QUALIFIED    ADMINISTRATION.  §  408 

recover  ;  and  so,  too,  funds  deposited  by  his  predecessor  in 
the  name  of  the  estate.^  But  where  the  former  representa- 
tive has  mingled  it  with  his  own  property,  a  conversion  —  or 
what  is  called  "administration" — takes  place,  so  that  only 
the  value  thereof  can  be  recovered,  and  the  administrator  de 
bonis  non  becomes  a  creditor,  with  no  preference,  so  to  speak, 
but  secured  by  his  predecessor's  official  bond.^  An  action 
will  not  lie  at  common  law  against  the  predecessor  for  the 
recovery  of  assets  converted  by  him  ;  nor,  as  it  is  held,  has 
the  administrator  de  bonis  non  any  right  to  call  for  an  ac- 
count of  any  part  of  the  estate  sold,  converted,  or  wasted  by 
his  predecessor,  since  it  is  not  "  unadministered." '"^  Hence, 
the  stricter  practice  is  for  the  distributees  or  creditors  to  the 
original  decedent,  or  others  in  interest,  and  not  the  adminis- 
trator de  bonis  non  of  the  estate,  to  seek  an  account  and  to 
prosecute  the  representatives  of  a  deceased  predecessor  in 
the  trust,  in  respect  of  his  maladministration.*  This  old  rule 
applied  literally,  however,  where  the  former  executor  or 
administrator  had  died  in  the  office  ;  and  modern  statutes, 
not  unfrequently,  permit  of  a  different  rule  for  other  cases, 
such  as  removal  or  resignation  of  one's  predecessor  ;  ^  and 
even,  as  consistency  requires,  so  that  the  administrator  de 
bonis  non  himself  may  compel  an  accounting  and  delivery  of 
assets  as  against  the  personal  representatives  of  a  deceased 
predecessor.^ 

1  Stair  V.  York  Nat.  Bank,  55  Penn.  notes;  Johnson  v.  Hogan,  37  Tex.  77; 

St.  364.     And  so,  too,  appaiently,  with  Young    v.    Kimball,    8     Blackf.    167; 

investment  securities  taken  for  the  estate  Thomas  v.  Stanley,  4  Sneed,  411. 
by  his  predecessor.     King  v.  Green,  2  ^  Marsh  v.  People,  15  111.  2S4. 

Stew.  133.     But  Safifran  v.  Kennedy,  7  ^  Walton  v.  Walton,  4  Abb.  (N.  Y.) 

J.  J.  Marsh.  188,  is  contra.  App.  512;    Knight  v.   Lasseter,  16  Ga, 

=2  Beall  z/.  New  Mexico,  16  Wall.  535;  151;    Tracy  v.  Card,   2  Ohio  St.  431; 

Wms.   Exrs.   916,   and    Perkins's    note;  Palmer  v.  Pollock,  26   Minn.   433;   Car- 

34  Ark.  144;    7  Mo.  469.  ter    v.    Trueman,     7     Penn.    St.     320. 

*  Cheatham  z".  Burfoot,  9  Leigh,  580;  Where  the  agent  of  a  former  adminis- 
Smith  7'.  Carrere,  I  Rich.  Eq.  123;  Stub-  trator  collects  a  debt  due  the  estate,  it 
blefield  v.  McRaven,  5  Sm.  &  M.  130;  is  in  this  sense  an  administered  asset; 
Oldham  V.  Collins,  4  J.  J.  Marsh.  49.  and  the  administrator  de  bonis  non  can- 

*  Beall  z/.  New  Mexico,  i6Wall.  540;  not  sue  the  agent  to  recover  it.  Wil- 
Rowan  v.  Kirkpatrick,  14  111.  8;  Stose  son  v.  Arrick,  112  U.  S.  83.  Both  at 
V.  People,  25  111.  600,  and  cases  cited;  common  law  and  under  the  act  of  Con- 
Wnis.    Exrs.    539,    915,    and    Perkins's  gress  of  local   force  in  the  District  of 

495 


4o8 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


The  unadministcred  property  vests  in  the  administrator  de 
bonis  noil  for  completing  the  proper  settlement  of  the  estate. 
A  balance  due  from  the  predecessor,  whether  rendered  vol- 
untarily by  the  predecessor  himself,  or  by  his  representative 
in  case  of  his  death,  or  obtained  by  a  suit  on  the  predeces- 
sor's probate  bond,  belongs  by  right  to  the  successor  as 
assets,  and  should  be  paid  into  his  hands. ^  He  is  preferred 
to  a  creditor  of  his  predecessor  in  reaching  a  fund  which  is 
properly  assets.^  And  it  is  held  that  the  administrator  dc  bonis 
non  should  inventory  at  their  just  valuation,  and  account  for 
all  chattels  belonging  to  the  decedent's  estate  which  his  pred- 
ecessor has  not  properly  sold  or  disposed  of,  and  which  still 
exist,  pursuing  them  or  their  value  ;  and  such  chattels,  being 
a  part  of  the  estate  which  the  predecessor  has  received,  and 
not  applied  in  any  manner  according  to  his  official  duty,  he 
may  be  charged  with  their  value  in  an  action  on  his  official 


Columbia  an  administrator  de  bonis  non 
has  title  only  to  the  goods  and  personal 
property  which  remain  in  specie  and 
have  not  been  administered.  And  this 
too  where  the  former  administrator  was 
removed  instead  of  dying  in  office. 
United  States  v.  Walker,  109  U.  S. 
258.  Nor  can  such  successor  sue  upon 
the  predecessor's  bond  to  recover  such 
moneys.  lb.  In  some  States  the  rule 
is  the  reverse.  Balch  v.  Hooper,  32 
Minn.   158. 

In  Wms.  Exrs.  539,  it  is  said  that  if 
the  original  administrator  were  dead, 
and  administration  de  bonis  non  had 
been  obtained,  it  was  held  that  such  ad- 
ministrator might  sue  the  executors  of 
the  deceased  administrator  at  law  on 
the  administration  bond  in  the  name  of 
the  ordinary.  But  this  is  denied  bv  Mr. 
Justice  Bradley  in  Beall  v.  New  Mexico, 
16  Wall.  540,  who  states  the  rule  of  the 
English  ecclesiastical  courts  as  instead, 
in  effect,  that  the  liability  is  to  the  cred- 
itors, legatees,  and  distributees  directly, 
and  not  to  the  administrator  de  bonis 
non.  And  he  explains  Hall,  Goods  of 
(i  Hagg.  139),  relied  upon  to  support 


the  text  in  Wms.  Exrs.  539,  supra,  as 
justifying  no  more  thgn  the  right  of  the 
administrator  de  bonis  non  to  pursue 
specific  assets  of  the  estate,  and,  if  these 
are  refused,  instituting  a  suit  on  the 
bond  for  them.  But  this,  he  adds,  is 
perfectly  consistent  with  the  doctrine 
"  that  fur  delinquencies  and  dcvastavits 
he  cannot  sue  his  predecessor  or  his 
predecessor's  representatives,  either 
directly  or  on  their  administration  bond." 
16  Wall.  541.  But  qu.  whether  English 
ecclesiastical  courts  ever  dealt  with 
bonds  of  a  predecessor  who  had  been 
removed  or  resigned.  See  snpra,%  157. 
We  may  conclude  that,  as  to  delinquen- 
cies of  a  deceased  predecessor,  the  rule 
prevails,  as  stated  by  Mr.  Justice  Brad- 
ley, where  the  law  has  not  been  changed 
by  statute.  Cases  cited  in  this  section, 
supra ;  Wms.  Exrs.  539,  and  Perkins's 
note.  And  see  Gray  v.  Harris,  43  Miss. 
421,  as  to  the  form  of  a  decree  of  a 
balance  found  against  the  predecessor 
on  final  settlement. 

1  Wigginw.  Swett,  6Met.  197;  Palmer 
V.  Pollock,  26  Minn.  433. 

2  Marvel  v.  Babbitt,  143  Mass.  226. 


496 


CHAP.  VI.] 


QUALIFIED    ADMINISTRATION. 


§409 


bond.i     He  cannot  bo  allowed  to  use  his  trust  as  a  cloak  to 
his  predecessor's  obligations.^ 

§  409.  The  same  Subject.  —  The  administrator  derives  title 
as  to  the  unadministered  assets,  not  from  the  former  execu- 
tor or  administrator,  but  from  the  deceased.^  And  the  occa- 
sion which  calls  for  his  appointment  forces  him  often  into 
antagonism  with  his  predecessor  or  his  predecessor's  repre- 
sentatives, to  rescue  the  estate  from  maladministration  and 
pursue  the  remedies  available  for  his  predecessor's  breach  of 
trust.  He  may  get  back  personalty  of  the  estate,  or  its  pro- 
ceeds, wrongfully  delivered  by  the  former  executor  or  admin- 
istrator,  and  still  held  as  a  fund  capable  of  identification.* 


^  Fay  V.  Muzzey,  15  Gray,  53,  56. 
And  see  Burnley  v.  Duke,  2  Rob.  (Va.) 
102.  A  balance  justly  due  from  the 
predecessor  may  be  recovered,  though 
used  improperly  in  paying  out  debts 
and  expenses.  Miller  v.  Alexander,  i 
Hill  Ch.  (S.  C.)  499.  If  a  deceased 
representative  has  disposed  of  all  the 
property  of  his  decedent,  no  proceed- 
ings can  be  had  to  charge  it  w  ithout  ap- 
pointing an  administrator  de  bonis  non. 
Piatt  V.  St.  Clair,  5  Ohio,  556.  See,  also, 
supra,  §  128,  as  to  granting  such  admin- 
istration for  the  protection  of  distribu- 
tees, etc. 

2  An  administrator  was  removed  who 
owed  the  estate  3 12,000;  the  sole 
surety  on  his  bond  for  5io,ooo  was  ap- 
pointed administrator  de  bonis  non  ;  and 
it  was  held  that  the  latter  must  charge 
himself  with  the  $10,000  as  assets.  21 
Neb.  233.     See  supra,  §  208. 

8  Catherwood  v.  Chabaud,  i  B.  &  C. 
154;  Weeks  v.  Love,  19  Ala.  25;  Bell 
w.  Speight,  1 1  Humph.  451;  American 
Board's  Appeal,  27  Conn.  344;  supra, 
§  128;  Wms.  Exrs.  961.  Each  admin- 
istrator de  bonis  non  derives  his  title 
from  the  dece.nsed.  Weeks  v.  Love, 
supra. 

*  Stevens  ii.  (loodell,  3  Met.  34;  Fay 
V.  Muzzev,  13  Cir:iy,  53. 

In  Slaymaker  v.  F.nrmers'  Bank,  103 
Penn.  St.  616  (1883),  the  right  of  the 


administrator  de  bonis  non  and  under 
the  provisions  of  the  Pennsylvania  stat- 
ute are  recently  discussed  at  length. 
Admitting  that  all  assets  of  the  estate 
in  the  hands  of  a  third  person  at  the 
death  of  the  former  administrator  or 
executor,  may  be  taken,  if  distinguish- 
able, by  the  administrator  de  bonis  non, 
the  collection  of  debts  due,  or  the  dis- 
position, change,  or  alteration  of  such 
assets  will  protect  them  from  such  ad- 
ministrator's claims  as  unadministered 
goods;  and  if  the  goods  are  changed 
or  altered,  and  remain  no  longer  in 
specie,  or  have  been  disposed  of,  the 
administrator  de  bonis  non  cannot  claim 
them;  and  so  of  the  debts,  unless  they 
be  such  as  grow  out  of  contracts  to  «  hich 
the  testator  or  intestate  was  a  party, 
for  otherwise  they  cannot  be  said  to  be 
debts  due  and  owing  to  the  decedent 
(3  Rawle,  361).  Hence,  upon  the  death 
of  the  representative  before  the  settle- 
ment of  his  account,  his  executor  or 
administrator  may  recover  from  a  bank 
the  balance  standing  to  the  credit  of  a 
deposit  account,  which  he  had  opened 
there  :n  his  representative  capacity; 
nor  is  the  bank  justified  in  paying  it 
over  to  an  administrator  de  bonis  non 
of  the  decedent  for  whose  estate  he 
had  opened  this  account.  Slaymaker  v. 
I'armers'  Bank,  ib.  For,  in  .Vmerican 
practice,  at  least,  such  a  fund  is  likely 


497 


§  409 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


He  may,  by  proceedings  in  equity,  recover  chattels  fraudu- 
lently and  collusively  transferred  by  the  predecessor.^  He 
may  demand  an  account  in  equity  against  his  predecessor  and 
his  sureties.^  He  may  demand  and  sue  for  assets  of  the  de- 
cedent's estate  in  the  hands  of  a  former  executor  or  admin- 
istrator, or  his  representative,"*  or  in  possession  of  some  third 
party.*  He  is  not  estopped  by  the  illegal  acts  of  his  predeces- 
sor.^ And  he  may  sue  the  latter,  although  there  are  no  credi- 
tors, and  the  object  of  his  administration  is  to  protect  the 
rights  of  heirs  and  legatees  or  distributees.^  In  general,  he 
may  institute  proceedings,  in  law  or  equity,  as  justice  may  re- 
quire,  for    personal    assets    which    remain    unadministcrcd.'^ 


to  be  reduced  by  disbursements,  ex- 
penses, and  compensation  for  services 
on  behalf  of  the  representative  who 
opened  it;  and  his  successor  is  only 
entitled  to  the  balance  after  proper  de- 
ductions. 

Local  codes  define  to  some  extent 
the  rights  and  liabilities  of  an  adminis- 
trator de  bonis  no7i. 

1  Wms.  Exrs.  918,  935;  Cubbidge  v. 
Boatwright,  I  Russ.  Ch.  Cas.  549;  For- 
niquet  v.  Forstall,  34  Miss.  87,  Cochran 
V.  Thompson,  18  Tex.  652.  He  may 
likewise  maintain  a  bill  in  equity,  where 
the  estate  is  insolvent,  to  have  a  fraud- 
ulent sale  of  real  estate  by  his  prede- 
cessor set  aside,  and  the  deed  cancelled. 
Forniquet  v.  Forstall,  supra.  Todd  v. 
Willis,  66  Tex.  704.  But  cf.  Thompson 
V.  Buckner,  2  Hill  Ch.  (S.  C.)  499.  The 
-South  Carolina  rule  appears  to  be  dif- 
ferent. Steele  v.  Atkinson,  14  S.  C.  154. 
And  it  is  there  held  that  a  fraudulent 
collusion  to  misapply  assets  may  be 
assailed  by  creditors  and  distributees, 
but  not  by  the  successor  in  the  trust.    lb. 

A  purchaser  not  privy  to  the  fraud 
cannot  be  thus  denuded  of  his  title. 

2  Whitaker  v.  Whitaker.  12  Lea,  393. 
See  §  408. 

^  Stair  V.  York  Nat.  Bank,  55  Penn. 
St.  364. 

*  Langford  v.  Mahoney,  4  Dru.  & 
War.  81;    Wms.  Exrs.  916. 

5  Bell  V.  Speight,  11  Humph.  451. 

*  Scott  V.  Crews,  72  Mo.  261.     The 


next  of  kin  should  not  sue  the  represen- 
tative of  the  predecessor;  but  the  ad- 
ministrator de  bonis  non  should.  Ham 
V.  Kornegay,  85  N.  C.  119.  See 
§  408. 

"  Wms.  Exrs.  916,  and  Perkins's  note. 
The  husband  of  a  sole  distributee  of 
the  intestate  cannot  resist  a  recovery 
by  such  administrator  on  the  ground 
that  he  has  paid  all  the  debts  and  taken 
possession  of  the  personal  property. 
Spencer  v.  Rutledge,  1 1  Ala.  590.  Nor 
can  the  sole  distributee.  And  see 
Elliott  V.  Kemp,  7  M.  &  W.  306. 

If  an  administrator,  after  his  removal 
from  the  office,  collects  money  recov- 
ered by  him  as  administrator,  he  may 
be  sued  in  assumpsit  by  the  adminis- 
trator de  bonis  non,  as  for  money  had 
and  received  to  the  latter's  use.  Salter 
V.  Cain,  7  Ala.  478.  Money  collected 
by  the  former  representative's  attorney 
on  a  demand  placed  in  his  hands  is  not 
assets  to  be  claimed  directly  by  the  new 
representative,  but  should  be  accounted 
for  by  the  former  representative.  Sloan 
V.  Johnson,  14  Sm.  &  M.  47.  Assump- 
sit does  not  lie  against  an  administrator 
de  bonis  non,  in  his  representntive  char- 
acter, to  recover  money  received  by  him 
from  his  predecessor,  arising  from  the 
sale  of  property  belonging  to  the  estate 
which  was  exempt  from  sale.  Godbold 
V.  Roberts,  20  Ala.  354.  An  original 
judgment,  not  recovered  by  the  prede 
cessor  in  his  representative  character, 


498 


CHAP.   VI.] 


QUALIFIED    ADMINISTRATION. 


§  409 


the  power,  and  is 
original  rcpresen- 
unadministered  by 


And  statutes  are  found  which  enable  him  to  procure  aid  in 
his  search  from  the  probate  court. ^ 

An  administrator  de  bonis  noti  has 
subject  to  the  responsibilities,  of  an 
tative,  with  respect  to  the  estate  left 
his  predecessor.  He  may  sue  on  promises  made  to  a 
predecessor  in  his  representative  capacity.^  The  final  set- 
tling up  of  the  estate  devolves  upon  him  ;  and  if  the  prede- 
cessor be  dead,  the  latter's  representative  should  do  nothing 
more  than  close  his  dealings,  and  deliver  over  such  assets  as 
may  still  be  undisposed  of,  and  the  balance  remaining  on 
a  just  accounting,  to  the  administrator  dc  bo)iis  non?  It 
is  the  duty,  moreover,  of  an  administrator  de  bonis  nan  to 
assume  the  defence  of  an  action  brought  against  his  prede- 
cessor on  a  contract  of  the  deceased.^  He  may  bring  a 
writ  of  error  on  a  judgment  against  his  predecessor.^  He 
may  institute  chancery  proceedings  for  foreclosure  of  a 
mortgage  given  to  the  deceased.*"     For  he  is  successor  to  all 


the  administrator  de  bonis  tion  cannot 
sue  upon  nor  treat  as  assets.  Alexander 
V.  Raney,  8  Ark.  324.  As  to  recovering 
a  debt  which  was  due  from  the  original 
representative  to  the  original  decedent, 
see  Kelsey  v.  Smith,  2  Miss.  68.  At 
common  law  an  administrator  de  bonis 
non  could  not  have  a  scire  facias  upon 
a  judgment  obtained  by  the  original 
executor  or  administrator.  Stat.  17  Car. 
II.  c.  8,  §  2,  removes  this  disability  in 
modern  English  practice;  Wms.  Exrs. 
898,  920;  and  it  does  not  generally  ob- 
tain in  the  United  States. 

The  administrator  de  bofiis  non  should 
not  institute  proceedings  against  widow 
and  heirs  of  a  deceased  predecessor,  l)ut 
against  the  predecessor's  personal  rep- 
resentative. Finn  v.  Hempstead,  24 
Ark.  III.  A  suit  in  equity  brought  by 
a  predecessor  deceased  may  be  revived 
by  him.  Fletcher  v.  Weir,  7  Dana,  345; 
Owen  V.  Curzon,  2  Vern.  237;  Wms. 
Exrs.  920.  See  2  De  G.  M.  &  G.  i. 
As  for  proceedings  to  compel  his  prede- 
cessor to  return  an  inventory,  see  Gas- 
kins  V.  Hammett,  32  Miss.  103. 


An  administrator  de  bonis  non  who 
sues  on  his  predecessor's  bond  must 
allege  the  facts  authorizing  him  to  do 
so.  Waterman  v.  Dockray,  78  Me.  139 
And  see  Slagle  v.  Entrekin,  44  Ohio  St. 

637- 

1  Perrin  v.  Judge,  49  Mich.  342. 

2  Catherwood  v.  Chabaud,  i  B.  &  C. 
150;  Wms.  Exrs.  961;  Shackelford  v. 
Runyan,  7  Humph.  141;  Stair  -'.  York 
Nat.  Bank,  55  Tenn.  St.  364. 

^  Ferebee  v.  Baxter,  12  Ired.  64; 
Ray  V.  Doughty,  4  Blackf.  115;  Steenw. 
Stecn,  25  Miss.  513.  As  to  the  equity 
rule  reejuiring  the  representative  of  a 
deceased  executor  to  pay  legacies  out 
of  funds  in  his  hands,  see  Tucker  v. 
Green,  5  N.  J.  Eq.  3S0 ;  Moore  v.  .Smith, 
5  N.  J.  Eq.  649 ;  Goodyear  v.  Blood- 
good,  I  Barb.  Ch.  617;  Saunders  v. 
Gathn,  i  Dev.  &  B.  Eq.  86. 

■•National  Bank  v.  Stanton,  116 
Mass.  438. 

5  Dale  V.  Roosevelt,  8  Cow.  333. 
And  see  Graves  7j.  Flowers,  5 1  Ala.  402. 

®  So,  where  the  mortgagor  was  the 
predecessor.     Miller  v.  Donaldson,  10 


499 


§  4IO  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  legal  rights  and  duties  which  vested  in  his  predecessor 
as  representative  of  the  estate,  so  far  as  may  be. 

Upon  the  death  of  a  plaintiff  suing  as  executor  or  admin- 
istrator, a  revivor  should  be  in  the  name  of  the  administrator 
de  bonis  non  and  not  of  the  plaintiff's  own  personal  represen- 
tative.^ And,  in  general  an  action  brought  to  recover  assets 
by  a  general  executor  or  administrator,  who  afterwards  dies, 
resigns,  or  is  removed,  may  be  revived  in  the  name  of  his 
successor.^  Where  a  representative  dies  before  settling  the 
estate,  the  administrator  de  bonis  non  is  the  proper  party 
plaintiff  or  defendant  in  an  action  which  would  otherwise  be 
brought  by  or  against  the  predecessor.^ 

§  410.  The  same  Subject;  Relation  of  Administrator  de  Bonis 
non  to  his  Predecessor's  Contracts,  etc.  —  An  administrator 
de  bonis  non  cannot  bring  suit,  as  it  is  held,  for  the  price  of 
goods  of  his  decedent  sold  by  a  predecessor  in  office  ;■*  since 
this  constitutes  rather  a  claim  upon  such  predecessor  in 
connection  with  striking  the  balance  upon  his  probate  ac- 
counts. For  loss  or  injury,  moreover,  arising  out  of  an 
agreement  made  by  his  predecessor  in  the  line  of  duty,  the 
remedy,  if  any,  is  against  the  predecessor  or  his  represen- 
tatives.^ But,  if  the  holder  and  in  possession,  an  administra- 
tor de  bonis  non  may  sue  in  his  own  name,  as  such,  on  a 
note  given  to  his  predecessor  as  administrator  or  executor.^ 
And  where,  in  connection  with  a  contract  made  on  behalf 
of  the  estate,  the  predecessor  takes  properly  a  bond  for 
security,  the  administrator  de  bonis  non  may  sue  for  a  breach 
of  the  bond."  In  assumpsit  brought  by  the  administrator 
de  bonis  non,  the   promise  may  be  alleged  as  having   been 

Ohio,  264.     And  see  Brooks  v.  Smyser,  Ark.  324;   46  Ark.  453.     But  see  same 

48  Penn.  St.  86.  section, /05/. 

1  Brasfield  v.  Cardwell,  7  Lea,  252.  °  H.ngthorp  v.  Neale,  7  Gill  &  J.  13. 

2  Russell  V.  Erwin,  41  Ala.  292;  State  ^  Barron  ^.  Vandervert,  13  Ala.  232; 
w.  Murray,  8  Ark.  199.  Burrus  z^.   Boulbac,  2  Bush,  39;    supra, 

3  North  Carolina  University  v.  §  293.  Cf.  Brooks  v.  Mastin,  69  Mo.  58, 
Hughes,  90  N.  C.  537.  "  See  Matthews  v.  Meek,  23  Ohio  St. 

*  Calder  v.  Pyfer,  2  Cranch,  C.  C.  272,  where  the  question  arose  in  con- 
430;  Slaughter  v.  Froman,  5  T.  B.  Mon.  nection  with  executing  the  trusts  under 
19.     And  see  Alexander   v.   Raney,  8     a  will. 

500 


CHAP.  VI.]  QUALIFIED    ADMINISTR.\TION.  §  410 

made  to  the  former  executor  or  administrator.^  We  have 
just  seen  that  he  may  re-open  the  fraudulent  transactions  of 
his  predecessor  and  <;et  back  assets  which  were  transferred 
in  breach  of  the  trust. ^ 

But  the  administrator  dc  bonis  jion  cannot  re-open  the 
transactions  which  his  predecessor  has  completed  in  fulfil- 
ment of  his  just  authority.  While  he  does  not  represent 
his  predecessor  in  the  same  sense  as  his  predecessor  repre- 
sented the  decedent,  he  is  bound  by  his  predecessor's  acts 
so  far  as  they  were  legal  and  valid  and  performed  in  good 
faith  ;  while,  according  to  the  sounder  reason,  he  is  bound 
no  further.^  He  cannot  disturb  the  title  of  a  purchaser 
acquired  under  an  agreement  with  his  predecessor  in  office, 
which  the  latter  was  competent  to  make ;  and,  while  in  many 
respects  there  is  no  privity  between  the  original  representa- 
tive and  an  administrator  dc  bonis  non,  the  acts  and  admis- 
sions of  the  former  within  the  sphere  of  his  proper  functions 
are  obligatory  upon  the  latter  and  upon  the  estate.*  And, 
upon  the  ground  of  privity,  the  successor  may  be  compelled 
to  fulfil  his  predecessor's  agreement  for  a  reasonable  and 
bond  fide  sale  of  chattels  ;  ^  as,  likewise,  he  may  sue  in  re- 
spect of  promises  and  contracts  made  to  his  predecessor  as 
a  representative,  where  the  proceeds  will  be  assets.^ 

Upon  the  general  principles  of  equity,  it  is  held  that  an 
administrator  de  bonis  non  will  not  be  permitted  to  repudiate 
a  just  contract  of  his  predecessor  without  compensating 
the  party  injured  for  all  loss  induced  by  the  contract."  And, 
following  the  usual  rule  of  administration,  such  administra- 


1  Hirst  V.  Smith,  7  T.  R.  182;  Wms.  ject  to  a  sort  of  lien  in  favor  of  the 
Exrs.  917;  Sullivan  z/.  Holker,  15  Mass.  predecessor  to  this  extent,  and  operative 
374.  for  his  indemnity  accordingly.     Supra, 

2  Supra,  §  409.  §  260.     And    see  Teague  v.  Dendy,  2 
'  Forniquet  v.  Forstall,  34  Miss.  87;  McCord  Ch.  207. 

Cochran  v.  Thompson,    18  Tex.    652  ;  ^  Hirst  v.  Smith,  7  T.  R.  182. 

O'Neall  V.  Abney,  2  Bailey,  317;    Mar-  ^  Moseley  v.  Rendell,  L.  R.  6  Q.  B. 

tin  V.  EUerbe,  70  Ala.  326.  338;   commenting  upon  Bolingbroke  v. 

*  Duncan  v.  Watson,  28  Miss.  187;  Kerr,  L.  R.  i  Ex.  222. 
Rice  (S.  C)  Ch.  40.     The  estate  conies  ^  Cockz/.  Carson,  38Tex.  284;  supra, 

to  the  administrator  de  bonis  non  sub-  §  360. 


§  410  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

tor  cannot  himself  contract  a  debt  so  as  to  bind  directly  his 
decedent's  estate.^ 

How  far,  too,  the  administrator  de  bonis  non  may  pursue 
assets  not  specifically  identified  as  belonging  to  the  estate, 
is  still  a  matter  of  question,  except  in  States  whose  legisla- 
tion has  defined  liberally  the  powers  of  an  administrator 
de  bonis  non.  Under  his  commission,  such  an  official  was 
rather  circumscribed  according  to  the  earlier  precedents. 
And  while  equity  exercises  a  broad  authority  in  modern 
times  for  tracing  out  trust  funds,  and,  notwithstanding 
the  want  of  ear-marks,  devoting  them  to  the  practical 
purposes  of  the  trust  to  which  they  fairly  belonged,  a  suit 
instituted  at  common  law  pursues  a  narrower  line.  Not 
only  the  conversion  of  funds  by  the  predecessor  may 
obstruct  his  successor,  but  the  strict  legal  doctrine  appears 
to  be,  that  whenever  the  property  in  any  of  the  assets  of 
the  deceased  has  been  so  changed  as  to  vest  in  the  prede- 
cessor, in  his  individual  capacity,  the  legal  title  thereto 
will  devolve  upon  his  own  executor  or  administrator  at 
his  death,  and  not  upon  the  administrator  de  bonis  nott ;  ^ 
or,  supposing  the  predecessor  to  have  resigned  or  been 
removed,  he  continues  the  legal  owner  until  equity  inter- 
poses to  decree  the  title  differently.  It  is  not  just  to  main- 
tain individual  ownership  by  the  personal  representative' 
in  all  cases,  nor,  especially,  to  allow  deposits  and  securities 
standing  in  the  name  of  the  trust  to  be  put  to  paying 
his  individual  creditors ;  and  any  such  conclusion  our  modern 
courts  of  probate  and  equity,  and  the  legislature  besides, 
will  be  found  to  resist.^  Much  of  the  legal  inconsistency 
to  which  modern  probate  law  is  exposed  arises,  doubtless, 
from  the  doctrine  of  modern  development  which  charges 
the  personal  representative  individually  and  immediately 
with  his  own  contract  on    behalf    of    the  estate,  instead  of 

iMcBeth  V.  Smith,  i  Const.  (S.  C.)  139;  Skeffington  v.  Budd,  3  Y.  &  Coll. 

676.  I ;    9  CI.  &  Fin.  220,  opinions  by  Lords 

2  Drue  V.  Baylie,   i    Freem.  462;    3  Cottenham  and  others. 
Keb.  298;    Wms.  Exrs.  918;    Harney  v.  ^  See  Stair  v.  York   Nat.  Bank,   55 

Dutcher,    15    Mo.   89,  and  cases  cited;  Penn.  St.  364;    King  z'.  Green,   2  Stew. 

Nicolay  v.  Fritzchie,  40  Mo.  69.     That  133  ;   Stevens  v.  Goodell,   3  Met.   343. 

equity  inclines  differently,  see  2  Freem.  And  see  §  330;  98  N.  Y.  511. 

502 


CHAP.  VI.]  QUALiriEU    ADMINISTRATION.  §411 

the  estate  itself  ;  the  rigid  consequence  proving  sometimes 
beneficial  to  the  estate  and  sometimes  disastrous.  For, 
wherever  the  administrator  de  bonis  tion  seeks  to  recover 
at  law,  as  assets  of  the  estate,  a  debt  founded  upon  a  legal 
and  individual  privity  between  the  debtor  and  his  prede- 
cessor, he  is  obstructed  in  his  common-law  remedies.^ 

§411.  Suit  on  Negotiable  Instrument  as  concerns  Admin- 
istration de  Bonis  non.  —  A  note  payable  to  A.  11,  e.xecutor 
(or  administrator)  of  C.  D.,  is  said  to  be  payable  to  A.  B. 
personally,  the  words  "  executor,"  etc.,  being  merely  descrip- 
tive. On  the  death  of  A.  B.,  therefore,  the  suit  rs  properly 
revived  in  the  name  of  his  personal  representative ;  at  all 
events,  if  he  holds  possession,  and  if  there  be  no  averment 
of  assets.^  But  this  rule  should  not  interfere  with  the 
right  of  an  administrator  de  bonis  non  to  receive  possession  of 
the  unadministered  assets  of  the  estate  he  represents ;  and, 
accordingly,  such  administrator  is  held  capable  of  suing, 
as  such,  upon  notes  or  other  evidences  of  debt  payable 
in  terms  to  his  predecessor  in  the  administration,  as  execu- 
tor or  administrator,  provided  he  make  proper  averment  as 
to  the  facts,  and  produce  or  account  for  the  instrument.^ 
Where,  by  general  indorsement  and  delivery,  or  otherwise, 

^  In  Brooks  v.  Mastin,  69  Mo.  58,  a  fendant  would  be  legally  liable  to  the 
recent  case,  an  administrator  de  bonis  predecessor,  and  the  predecessor  liable 
non  undertook  to  sue  upon  a  debt  orig-  over  to  the  plaintiff,  but  that  there  would 
inally  owing  the  decedent,  for  which  be  n(i  liability  as  between  the  defehd- 
the  defendant  had  delivered  his  own  ant  and  the  plaintiff, 
promissory  note  in  favor  of  the  prede-  It  is  held  that  an  administrator  de 
cessors  "as  administrators";  but  he  bonis  non '\%  ViOK.  entitled  to  the  posses- 
could  not  produce  the  note.  It  was  sion  of  a  note  given  to  the  former  repre- 
held  that  the  plaintiff  could  not  recover  sentative  as  such.  Miller  v.  Alexander, 
on  the  note  without  showing  that  it  had  i  Hill  Ch.  (S.  C.)  25. 
come  into  his  possession;  nor  on  the  ■^  Cravens  v.  Logan,  7  Ark.  103; 
original  consideration,  without  either  Cook  v.  Holmes,  29  Mo.  61 ;  Arrington 
showing  that  the  note  had  not  been  v.  Hair,  19  Ala.  243.  See  supra,  §  293, 
paid  to  the  lawful  holder,  or  else  sur-  as  to  an  original  representative's  right 
rendering  it  for  cancellation.  And  it  to  sue  upon  such  an  instrument, 
was  further  held  that  where  a  transac-  ^  Catherwood  v.  Chabaud,  i  B.  &  C. 
tion  was  the  same  as  if  his  predecessor  150;  Barron  v.  Vandvert,  13  Ala.  232. 
had  been  paid  in  full  what  was  due  the  It  does  not  follow  that  because  the  ad- 
estate,  and  had  re-deposited  with  the  niinistrator  de  bonis  non  may  sue,  the 
defendant  part  of  the  money,  the  de-  representative  of  the  original  executor 


§  412  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  note  became  assets  payable  to  bearer,  the  administra- 
tor de  bonis  non  is  permitted  to  sue  as  holder.^  Where, 
however,  the  note  belonging  to  the  estate  was  taken  in 
the  individual  name  of  the  former  executor  or  administra- 
tor, or,  for  other  cause,  the  administrator  de  bonis  non  can- 
not produce  the  instrument  as  bearer  and  aver  title,  an 
action  at  law  apparently  cannot  be  maintained ;  for  the 
legal  title  vests  rather  in  his  predecessor's  personal  repre- 
sentative, on  his  death.  Yet  here,  on  the  ground  that  the 
administrator  de  bonis  non  is  entitled  to  the  equitable  con- 
trol of  the  debt  and  its  collection,  he  may  rightfully  prose- 
cute his  suit  in  equity.^ 

§  412.  Administrator  de  Bonis  non  bound  to  observe  Good 
Faith  and  Prudence,  like  Other  Administrators.  —  The  adminis- 
trator dc  bonis  non  is  bound  to  observe  good  faith,  and  to  con- 
form to  the  usual  standard  of  diligence  and  care,  as  regards 
collecting,  procuring,  and  distributing  the  assets  not  already 
administered  ;  but  he  is  no  more  an  insurer  of  the  estate 
than  a  general  representative.^  If  he  faithfully  performs 
his  own  trust  he  cannot  be  made  to  suffer  loss  by  reason 
of  any  predecessor's  default ;  nor  is  he  chargeable  for  prop- 
erty which,  notwithstanding  such  faithful  performance,  fails 
to  come  into  his  hands.*  The  revival  of  a  judgment  ren- 
dered against  the  former  representative  may  be  made  to 
reach  assets  in  the  hands  of  the  successor ;  but  it  cannot 
be  made  the  foundation  of  a  suit  against  the  latter  and  his 
sureties  as  for  the  successor's  waste.^ 


or  administrator  may  not  sue.     By  Lord  ter,  37  Ala.  268;    Eubank  v.  Clark,  78 

Tenterden,  in  Cathervvood  v.  Chabaud,  Ala.  73. 

supra;  Wms.  Exrs.  920.  "  Smithers  v.  Hooper,  23   Md.  273; 

1  Catherwood  z/.  Chabaud,  i   B.  &  C.  Reyburn    v.    Ruggles,    23    Mo.    339; 

150.      Here  the  suit  was  permitted  to  Weeks  v.  Love,  19  Ala.  25.     A  decree 

be  brought  by  such  administrator  in  his  directing  property,  in  the  hands  of  an 

representative  capacity.    That  the  bearer  administrator  de  bonis  non,  to  be  taken 

may  sue  in  his  own  name,  by  virtue  of  to  satisfy  a  defalcation  of  a  preceding 

rightful    possession,    we    have    already  administrator,  is  erroneous.     Anderson 

stated  in  the  text.     And  see  Saffold  v.  v.  Miller,  6  J.  J.  Marsh.  568. 
Banks,  69  Ga.  289.  ^  Ruff  z/.  Smith,  31  Miss.  59. 

^  Burrus  v.  Roulhac,  2  Bush,  39.  In  some  States,  under  the  local  code, 

3  Supra,  §  315;  Wilkinson  v.  Hun-  an  administrator  de  bottis  non  must  ad- 

504 


CHAP.  VI.]  QUALIFIED    ADMINISTRATION.  §  4^4 

§413.  Administrator  de  Bonis  non  with  Will  annexed. — 
Powers  and  duties  vested  in  the  executor,  as  such,  and  not 
personally,  generally  devolve  upon  an  administrator  dc  bonis 
noil  with  the  will  annexed,^  as  well  as  upon  an  administrator 
with  the  will  annexed. 

If  the  predecessor  resigns  or  is  removed  from  office 
before  the  final  settlement  of  the  estate,  and  an  admin- 
istrator de  bonis  non  with  the  will  annexed  is  appointed 
in  his  place,  the  latter  becomes,  immediately  upon  receiv- 
ing his  credentials,  the  sole  representative  of  the  estate 
of  the  deceased,  and  is  entitled  to  all  the  assets  then  in  the 
hands  of  the  former,  belonging  to  the  estate ;  and  this, 
notwithstanding  the  time  of  paying  moneys  to  the  persons 
ultimately  entitled  to  receive  them  has  not  yet  arrived.^ 
But  he  does  not  succeed  to  powers  and  "duties  which  lie 
outside  the  ordinary  scope  of  an  executor's  functions,  or 
such  as  are  discretionary,  unless  the  testator  has  clearly 
granted  commensurate  authority.^ 

§  414.  Rights,  Duties,  and  Liabilities  of  Temporary  and 
Special  Administrators,  etc.  —  Fonrt/ilj,  as  to  temporary  and 
special    administrators,  what   has  already  been  said  in  con- 

vertise  and  hold  himself  liable  for  the  de  bonis  not  with  will  annexed  has  no 

presentment  of  claims  somewhat  as  an  concern  with  property  to  whose  use  a 

original  administrator.     But,  subject  to  legatee  for  life  or  next  of  kin  is  already 

such   provisions,  if   the  debts  have   all  specifically  entitled,  if  entitled  under  the 

been  paid,  the  administrator  should  be  will,  see  Place,  Re,  i   Redf.  Sur.  276; 

held  to  an  expeditious  distribution  and  Brownlee  v.  Lockwood,   20  N.  J.  Eq. 

winding  up  of  the  estate.     See  Alexan-  239.     And  so,  conversely,  a  direction  to 

der  V.  Stewart,  8  Gill  &  J.  226;   Cover  executors  as  executors,  and  not  upon  a 

V.  Cover,  16  Md.  i.  personal  conlidence,  may  be    executed 

1  Blake  v.  Dexter,  12  Cush.  559.  by  such  fiduciary.     King  v.  Talbert,  36 

•2  Pinney  v.  Barnes,  17  Conn.  420.  Miss.  367;   Ohvine's  .\ppeal,  4  \V.  &  S. 

8  An  administrator  de  bonis  non  with  492.     And    see    Mathews   v.   Meek,   23 

the  will  annexed  is  under  the  same  pre-  Ohio  St.  272;  Triggs  v.  Daniel,  2  Bibb, 

sumed  disability  as  an  administrator  with  301 ;   Newsom  v.  Newsom,  3  Ired.  Eq. 

the  will  annexed,  as  concerns  the  execu-  411.     Equity  must  sanction  the  power 

tion  of  a  personal  trust.     Supra,  §  407;  in  case  of  doubt.     63  Md.  542.    Where 

Knight  V.  Loomis,  30  Me.  204;  Ross  v.  the  will  confers  a  power  of  sale  upon 

Barclay,  18  Penn.  St.  179;   Warfield  v.  any  one  legally  qualihed  to  administer 

Brand,  13  Bush,  77;  Vardeman  v.  Ross,  the  estate,  this  administrator  may  exer- 

36  Tex.    Ill;   supra,  §   128;    Rubottom  cise  it.     Rollins  z'.  Rice,  59  N.  H.  493, 

V.  Morrow,  24  Ind.  202;  Ingle  v.  Jones,  Cf.  Frisby  v.  Withers,  61  Tex.  134. 
9  Wallace,  486.     That  an  administrator 


§410  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV 

nection  with  their  appointment  may  sufficiently  indicate 
the  scope  of  powers  and  liabilities  pertaining  to  these  sev- 
eral classes  of  trusts.^  The  general  executor  or  adminis- 
trator, when  qualified,  succeeds  to  the  rights  of  a  special 
administrator ;  '^  and,  if  the  latter  duly  account,  and  turn 
over  the  assets  or  their  proceeds  to  him,  having  conducted 
himself  with  reasonable  discretion  and  honesty,  the  courts 
do  not  appear  inclined  to  permit  third  parties,  and  those 
who  dealt  with  such  temporary  official,  to  take  advantage 
of  acts  committed  by  him  in  excess  of  his  authority.^ 

§  415.  Validity  of  Qualified  Representative's  Acts  does 
not  depend  upon  his  Own  Designation  of  the  Office.  —  We 
may  add,  that,  in  general,  the  validity  of  a  personal  rep- 
resentative's acts  depends  on  whether  they  were  within 
the  scope  of  his  authority  as  granted  ;  not  on  whether  he 
designated  himself  by  one  title  or  another.*  And  this  is 
a  principle  available  for  absolving  sureties  on  the  repre- 
sentative's official  bond,  where  the  latter  tak-es  a  fund  to 
which  he  was  not  legally  entitled  in  his  qualified  official 
character.^ 

§  416.  Negligence,  etc.,  by  Various  Representatives  in  Suc- 
cession.—  A  bill  in  equity,  which  includes  several  successive 

1  Supra,  §§  132-135.  that   one  who  was   only  a   curator  or 

2  Cowles  V.  Hayes,  71  N.  C.  231.  special  administrator,  styled  himself  as 
8  See  Von  Schmidt  v.  Bourn,  50  Cal.     a   general    administrator.       Morgan   v. 

616;   supra,  §  190.     A  special  adminis-  Locke,  28  La.  Ann.  806. 

trator  under  the  New  York   code  may  Where  a  public  administrator  receives 

receive  permission  to  pay  a  debt  if  the  letters  of  administration   on  the  estate 

surrogate  is  satisfied  of  the  propriety,  of  one  who  left  relatives  in  the  country, 

3  Dem.  285.     But  not  those  of  one  side  he  acts  not  as  public   administrator,  but 

in  the  litigation  which  gave  rise  to  his  as  general  administrator.     2  Dem.  650. 

appointment.     2   Dem.   264.     He    may  A    public    administrator    cannot     take 

maintain  a  bill  in  equity  to  redeem  from  charge  of  an  estate  on  the  allegation  of 

a  mortgage  where  the  decedent's  right  fraudulent  conversion  by  a  foreign  ad- 

to    redeem    might    be    barred  before   a  ministrator;     but    it    is    the     creditors 

general  administrator  could  be  qualified,  and   distributees   who    should    proceed. 

Libley  v.  Cobb,  76  Me.  781.  McCabe  v.  Lewis,  76  Mo.  296.     As  to 

Missouri  statute  as  to  such  adminis-  suing  a  predecessor,  see  State  v.  King, 

trators  not  unconstitutional.     Ro  Bards  76  Mo.  510. 

V.  Lamb,  127  U.  S.  802;    §  135.  ^  Warfield  v.  Brand,  13  Bush,  77. 

*  Thus,  it  does   not   affect   the  case 

506 


CHAP.  VI.]  QUALIFIED    ADMINISTRATION.  §  416 

administrators,  is  not  multifarious,  in  a  suit  to  settle  an 
estate.^  There  may  be  culpable  negligence  or  misconduct 
as  to  assets,  so  as  to  charge  various  representatives  in 
succession.^ 

1  Johnson  v.  Molsbee,  5  Lea,  445.  administrator    of    a    surety    upon    his 

^  For  the  rule   of  determining   their  predecessor's  bond  may  be  reached  by 

respective  liabihties  in  such  cases,  see  the  suit  of  the  administrator  de   bonis 

Lacy  V.  Stamper,   27  Gratt.  42.      The  non.     State  v.  Porter,  9  Ind.  342. 


PART   V. 

PAYMENTS  AND  DISTRIBUTION. 


CHAPTER    I. 

DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 

§  417-  Executor  or  Administrator  is  bound  to  pay  Debts, 
Claims,  etc.  —  So  far  as  assets  may  have  reached  his  hands 
in  due  course,  every  executor  or  administrator  is  bound  to 
administer  the  estate  according  to  law,  by  paying  the  debts, 
claims,  and  charges  upon  it,  in  legal  order  of  preference, 
before  making  any  distribution.  This  duty  is  enjoined  upon 
him  by  law,  by  his  oath  and  bond,  and  by  a  sound  public 
policy,  which  treats  a  decedent's  estate  as  a  fund,  subject  to 
all  lawful  debts  and  demands,  and  to  all  reasonable  charges 
incurred  by  reason  of  his  death.  Legatees  and  distributees, 
as  a  rule,  are  postponed  to  all  such  claimants ;  their  satisfac- 
tion being  out  of  the  surplus,  if  any,  which  remains ;  which 
surplus,  rather  than  the  gross  assets,  represents  the  true 
fortune  left  by  the  deceased  person  ;  though,  as  we  shall  see, 
priorities  exist  even  as  among  legatees,^ 

Although  this  winding  up  of  a  deceased  person's  affairs 
corresponds  considerably  to  the  striking  of  a  balance,  such 
as  one  might  have  made  with  his  creditors,  were  he  alive, 
there  are  essential  points  of  difference  :  thus,  statutes  place 
special  limitations  to  the  presentation  of  claims  against  the 
estate  of  a  deceased  person  ;  charges,  such  as  those  of  funeral 
and  administration,  and  widow's  allowances,  are  here  regarded, 
in  addition  to  what  were  strictly  debts  owing  by  the  deceased  ; 

^  McNair's  Appeal,  4  Rawle,  148;  Dean  v.  Poitis,  11  Ala.  104;  Union 
Mcintosh   V.    Ilumbleton,  35    Ga.  95;     Bank  v.  McDonough,  7  La.  Ann.  232. 

508 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  4l8 

assets  are  marshalled,  moreover,  and  preferences  accorded 
among  debts  and  charges  upon  the  decedent's  estate,  after  a 
method  peculiar  to  administration.  All  these  points  of  dif- 
ference will  appear  in  the  course  of  the  present  chapter. 

But  the  paramount  authority  of  a  statute  which  establishes 
an  equality  among  seasonable  creditors  of  the  same  degree 
must  be  respected.  No  testator  can  so  discriminate  of  choice 
among  his  creditors  as  to  change  the  legal  rules  of  priority 
among  them  in  the  settlement  of  his  estate  ;  he  cannot  post- 
pone the  debt  of  higher  rank  to  that  of  a  lower,  nor  create 
a  preference  among  debts  of  equal  degree.^  Nor  has  the 
probate  court  any  inherent  authority  to  vary  the  legal  rules 
of  priority.^  So,  too,  the  usual  consequences  of  delay  and 
ladies  on  the  creditor's  part,  in  omitting  timely  presentment 
and  prosecution  of  his  demand,  cannot  be  averted  by  general 
directions  in  a  will,  or  the  order  of  a  probate  court ;  ^  though 
local  codes  afford  equitable  relief  to  the  tardy  creditor  under 
proper  circumstances,*  and,  saving  the  priority  of  seasonable 
creditors,  even  a  testator  might  put  his  creditor  on  the  foot- 
ing of  a  specific  legatee  by  apt  language  in  his  will. 

§  418.  Notice  of  Appointment;  Presentation  of  Claims; 
Statutes  of  Special  Limitations.  —  Statutes  in  various  Ameri- 
can States  now  provide  that  executors  and  administrators 
shall  presently  give  public  notice  of  their  appointment,  by 
advertisement  or  otherwise,  within  a  fixed  time.^  The  main 
object  of  such  legislation  is  to  facilitate  the  speedy  settle- 
ment of  each  deceased  person's  estate,  by  raising  a  legal 
barrier  to  claims  ;  for  where  the  public  notice  has  been  duly 
given,  the  executor  or  administrator,  as  such  statutes  declare 
explicitly,  cannot  be  held  to  answer  to  the  suit  of  any  creditor 
of  the  deceased  after  a  specified  brief  period,  save  so  far  as 

1  Turner  v.  Cox,  8  Moore,  P.  C.  288;  '  Collamore  v.  Wilder,  9  Kan.  67, 
Moore  v.  Ryers,  65  N.  C.  240;    Mason     57  Iowa,  353;    72  Ind.  120. 

V.  Man,  3  Desau.  16;  People  v.  Phelps,  *  See  Baldwin  v  Dougherty,  39  Iowa, 

78  111.  147.  50;    Burroughs   v.    McLain,    37    Iowa, 

2  Tompkins  v.  Weeks,  26  Cal.  50;  189;  Miller  v.  Harrison,  34  N.  J.  Eq. 
Jenkins  w.  Jenkins,  63  Ind.  120;  Thomp-  374;  Winegar  v.  Newland,  44  Mich, 
son  z/.  Taylor,  71  N.  Y.  217.  367;     Greaves,    Re,    18    Ch.    D.    551. 

6  Supra,  §§  389-391- 
509 


§4i8 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


new  assets  may  afterward  have  come  to  hand.^  In  this 
manner  claimants  are  compelled,  regardless  of  the  usual  rules 
of  limitation,  to  present  their  claims  upon  the  estate  within 
six  months,  one  year,  or  two  or  more  years,  according  as  the 
local  act  may  prescribe,  or  else  be  barred.^ 

Statutes  of  this  character  may  expressly  or  by  inference 
require  the  presentation  of  demands  against  the  estate  within 
the  prescribed  period.  This  special  barrier  operates,  not- 
withstanding an  administrator's  absence  from  the  State  ;^  and 
also  as  against  non-resident  as  well  as  resident  claimants,*  for 
the  policy  is  to  benefit  the  estate.  So,  too,  it  is  held  that 
an  administrator's  promise  to  pay  such  barred  claim  will  not 


1  For  the  computation  of  time  in 
such  cases,  see  the  language  of  the 
local  statute.  Wooden  v.  Cowles,  ii 
Conn.  292;  Henderson  v.  Ilsley,  i  Sm. 
&  M.  9.  In  Massachusetts,  public  notice 
is  to  be  given  within  three  months  from 
the  appointment,  and  the  barrier  is  thus 
raised  in  two  years.  Affidavit  of  notice 
is  to  be  filed  in  the  probate  registry,  as 
the  Massachusetts  statute  provides  ;  but 
the  fact  of  due  notice  may  be  proved  by 
oral  evidence  as  well.  Henry  v.  Estey, 
13  Gray,  336.  The  statute  provides  for 
giving  the  notice  afterwards,  on  order 
of  the  court,  where  by  accident  or  mis- 
take the  executor  or  administrator  failed 
to  do  so  in  regular  course;  in  which  case 
the  limitation  runs  from  the  time  of  such 
order.  Mass.  Gen.  Stats,  c.  97,  §§  3,  4. 
See  also  Hawkins  v.  Ridenhour,  13  Mo. 
125;  Dolbeer  v.  Casey,  19  Barb.  149; 
Lee  V.  Patrick,  9  Ired.  L.  135.  In  dif- 
ferent States  the  period  of  limitations 
will  be  found  to  vary.  The  form  of  such 
notices  is  usually  fixed  by  statute  and 
standing  rules  of  the  probate  court ;  the 
fact  of  one's  appointment  being  stated, 
with  a  demand  upon  all  persons  indebted 
to  make  payment,  and  all  persons  hav- 
ing claims  to  present  them.  Gilbert  v. 
Little,  2  Ohio  St.  156.  The  precise 
time  within  which  claims  should  be  pre- 
sented need  not  be  explicitly  stated, 
lb.;  May  v.  Vann,  15  Fla.  553. 

^  Hawkins  z'.  Ridenhour,  13  Mo.  125; 

5 


6  Gill,  430;  Mass.  Gen.  Stats.  697,  §§  i, 
2;  9  Ired.  L.  135;  44  Conn.  450.  In 
some  States  the  statute  requirement  is 
pronounced  directory  merely.  Hooper 
V.  Bryant,  3  Yerg.  i. 

Special  administrators,  with  functions 
limited  to  collection,  etc.,  are  not  liable 
to  actions,  and  hence*  need  not  give 
notice.  Erwin  v.  Branch  Bank,  14  Ala. 
307.  But  provision  is  made  that  an  ad- 
ministrator de  bonis  non  shall  be  liable 
for  two  years  after  qualifying,  unless 
the  creditor's  action  was  barred  before 
the  previous  administration  terminated. 
Mass.  Gen.  Stats,  c.  97,  §§  12,  14. 

Provision  is  made  for  the  case  of  a 
creditor  of  the  deceased,  whose  right  of 
action  does  not  accrue  within  the  two 
years,  where  the  executor  or  administra- 
tor gives  statute  notice.  Mass.  Gen. 
Stats,  c.  97,  §  8;  Bacon  %'.  Pomeroy,  104 
Mass.  577;  25  Minn.  22.  So  for  in- 
fants in  some  codes :  or  the  court  may 
extend  for  "  good  cause."  Except  for 
such  saving  provisions,  an  executor  or 
administrator  who  has  given  his  notice 
becomes  absolved  from  liability  as  such 
nt  the  expiration  of  the  statute  period. 
6  Cush.  231^;  13  Gray,  559.  As  to  a 
creditor's  bill  in  equity  for  relief  in  such 
cases,  see  2  Allen,  445. 

3  6  Ark.  14;  37  Tex.  34;  Lowe  v 
Jones,  15  Ala.  545. 

*  Erwin  v.  Turner,  6  Ark.  14. 


10 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON"  THE  ESTATE.      §  41^ 

make  the  claim  binding  upon  the  decedent's  estate,  or  take 
it  out  of  the  statute.^  Nor  can  the  claimant  who  has  inexcus- 
ably neglected  to  pursue  his  claim  upon  the  estate,  so  as  to 
avoid  the  barrier,  sue  legatees,  heirs,  or  kindred  in  respect  of 
the  property  they  may  have  derived  through  the  decedent.^ 
In  certain  States  the  exhibition  of  a  claim,  properly  authen- 
ticated to  the  executor  or  administrator,  or  a  demand  upon 
him,  arrests  the  statute  of  non-claim  ;  ^  or,  the  local  code 
contemplating  a  presentment  of  all  claims  in  the  probate 
court  for  classification  and  allowance,  a  creditor  can  only  be 
paid  out  of  assets  subsequently  discovered,  unless  he  duly 
files  his  claim  against  original  assets  within  the  period  fixed 
by  the  statute.^  But,  generally,  the  same  statute  barrier 
applies  as  to  the  time  for  presenting  or  suing  upon  a  demand 
against  a  decedent's  estate.^  And  a  testator  by  creating  an 
express  trust  in  his  will  for  his  creditors  may  take  their 
claims  out  of  the  operation  of  the  statute.^ 


1  Branch  Bank  v.  Hawkins,  12  Ala. 
755;  25  Miss.  501.  The  executor  or 
administrator  is  bound  to  plead  such 
statute.     Supra,  §  389. 

2  Cincinnati  R.  v.  Heaston,  43  Ind. 
177;  I  Bailey  Ch.  437;  12  Iowa,  52. 
Local  statutes  provide  for  admitting 
later  claims  which  had  been  deferred 
with  good  excuse.  Mass.  Gen.  Stats. 
c.  97;  22  Cal.  95.  Excuses  are  recog- 
nized in  some  other  instances.  North 
V.  Walker,  66  Mo.  453 ;  Senat  v.  Find- 
ley,  5 1  Iowa,  20.  And  see  Sampson  v. 
Sampson,  63  Me.  328. 

82  Humph.  565;  33  Ala.  258;  7 
Fla.  301 ;  29  Ark.  238.  The  time  of 
subsequent  presentment  to  the  probate 
court  for  classilication  is  not  necessarily 
limited.  lb.  An  actual  presentation 
of  the  claim  is  not  always  necessary; 
for,  if  within  the  prescribed  time  the 
administratt)r  or  executor  has  notice  or 
knowledge  of  it,  this  may  be  shown  to 
charge  him.  Ellis  v.  Carlisle,  8  Sm.  & 
M.  552;  Little  V.  Little,  36  N.  H.  224; 
2  Ind.  174  ;  10  Tex.  197;  9  How.  (N.  Y.) 
Pr.  350.     But  see  58  Ala.  25.     Notice 

5 


to  an  administrator  of  the  presentment 
of  a  demand  at  the  county  court  may 
suffice.  24  Mo.  527.  See  also  Ham- 
mett  V.  Starkweather,  47  Conn.  439.  In 
New  York,  a  claim  duly  presented  to 
•  the  representative  and  not  objected  to 
nor  proposed  to  be  referred,  becomes  a 
liquidated  and  undisputed  claim,  and  on 
application  to  the  surrogate  to  direct 
payment  he  only  inquires  whether  there 
are  proper  assets  to  be  applied.  Lam- 
bert V.  Craft,  98  N.  Y.  342. 

*  Russell  V.  Hubbard,  59  111.  335 ; 
42  Ind.  485;    58Tenn.  170. 

6  Comes  V.  Wilkin,  21  N.  Y.  428;  6 
Cush.  235.  Opportunity  to  re-open  the 
period  is  sometimes  afforded  by  statute. 
32  Vt.  176. 

Statutes  of  this  character  may  be 
considered,  not  as  statutes  of  limita- 
tions, but  rather  as  special  regulations 
of  probate  law  which  impose  the  loss  of 
the  claim  if  the  party  fails  to  sue  on  it 
within  the  time  prescribed.  Standifer  v. 
Hubbard,  39  Tex.  417.  But  cf.  i  Ired. 
Eq.  92. 

^Abbay  v.  Hill,  64  Miss.  340. 

II 


§  419  EXECUTORS-  AND    ADMINISTRATORS.  [PART  V. 

§  419.  The  same  Subject.  — The  claims  and  demands,  whose 
suit  or  presentation  within  the  statute  period  are  thus  con- 
templated, appear  in  general  to  be,  all  claims  that  could  be 
asserted  against  the  estate  in  a  court  of  law  or  equity,  exist- 
ing at  the  time  of  the  death  of  the  deceased,  or  coming  into 
existence  at  any  time  after  his  death,  and  before  the  expira- 
tion of  the  statute  period,  including  claims  running  to  certain 
maturity,  although  not  yet  payable.^  The  statute  barrier 
has  been  maintained  strenuously  against  common-law  actions 
brought  against  the  legal  representative,  which  were  founded 
in  inchoate  and  contingent  claims,  such  as  dormant  warran- 
ties and  the  like,  but  have  not  been  brought,  and  could  not 
have  been,  within  the  statute  period.^  Under  a  bill  of  equity 
or  legislative  proviso,  such  cases  of  hardship  are  sometimes, 
however,  overcome.^  And  it  is  held  that  these  inchoate  and 
contingent  claims  may  be  enforced  against  the  heir  or  dis- 
tributee, where  the  claimant  is  too  late  to  make  the  executor 
or  administrator  liable.^  One  who  seeks  to  enforce  a  trust 
against  specific  property  must  seek  relief  in  a  court  of 
equity,  and  can  hardly  be  called  a  creditor  within  the 
meaning  of  the  probate  law.^  But  a  debt  or  note  which 
is  secured,  as,  for  instance,  by  mortgage,  ought,  in  order  to 
be  enforced  apart  from  such  security,  to  be  thus  sued  upon 
or  presented.^ 

1  Walker  v.  Byers,  14  Ark.  246;  67  ^  Gunter  v.  Janes,  9  Cal.  643;  Van- 
Cal.  637.  dever  v.  Freeman,  20  Tex.  ^^t,. 

2  As  in  Holden  v.  Fletcher,  6  Cush.  ^  Willis  v.  Farley,  24  Cal.  490.  See 
235.  And  see  Bemis  v.  Bemis,  13  Gray,  67  Cal.  178.  A  claim  against  the  estate 
559;  Pico  V.  De  la  Guerra,  18  Cal.  422.  of  a  deceased  partner  is  included  under 
An  infant's  claim  is  within  the  statute  the  statute.  Fillyan  v.  Laverty,  3  Fla. 
barrier,  or  those  of  others  under  legal  72. 

disability.       Williams    v.    Conrad,     11  Under  the   Massachusetts    statute,  a 

Humph.  412.  creditor  whose  right  of  action  will  not 

3  (iarfield  w  Bemis,  2  Allen,  445.  accrue   within    the    period    limited    for 
*  Walker    v.    Byers,    14   Ark.    246  ;  settling  the  estate,  should  petition  to  the 

Mann  v.  Everts,  64  Wis.  372.  See  probate  court,  setting  forth  a  stntement 
Selover  v.  Coe,  63  N.  Y.  438.  The  of  his  claim;  and  the  court,  if  it  appears 
Massachusetts  statute  provides  expressly  that  the  claim  is  justly  due  from  the 
for  suit  against  heirs  and  next  of  kin,  or  estate,  will  order  the  executor  or  admin- 
devisees  and  legatees,  within  one  year  istrator  to  retain  assets  sufficient ;  or  a 
after  the  cause  of  action  accrues.  Mass.  person  interested  in  the  estate  mnv  give 
Gen.  Stats,  c.  97,  bond,  with  sureties,  to  the  creditor,  for 


CHAP.  I.J   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  420 

But  such  Statutes  appear  confined  usually  to  demands 
which  accrue  against  the  deceased  person,  so  as  not  to  aj^ply 
to  any  demands  arising  by  contract,  express  or  implied,  with 
the  executor  or  administrator  himself.  For  claims  of  the  lat- 
ter sort,  a  personal  representative  has  notice  and  opportunity 
to  provide,  so  as  to  save  himself  harmless  ;  and  these  are 
affected  by  common  rules  of  limitations.^ 

§  420.    Presentation  of   Claims  ;   Statute   Methods   considered. 

—  Claims  upon  an  estate  must  be  exhibited  for  allowance  as 
the  local  statute  directs.  In  many  States  they  should  be 
presented  first  to  the  executor  or  administrator ;  whose  settle- 
ment of  the  same  in  due  season  will  obviate  all  further  pro- 
ceedings on  the  claimant's  part  ;  while  his  refusal  or  neglect  to 
settle  will  throw  the  claimant  back  upon  the  usual  remedies 
at  law ;  the  probate  tribunal  passing,  not  upon  individual 
claims,  but  only  upon  the  administration  account,  with  its 
various  items  ;  nor  in  advance  of  a  payment,  but  after  pay- 
ment has  been  made.^ 

But,  in  some  parts  of  the  United  States,  the  probate  court 

due  payment  of  the  claim.     Mass.  Gen.  ^  Brown  v.  Porter,   7   Humph.   373; 

Stats,  c.  97;    128  Mass.  528.    See  Brew-  Perry  z'.  Field,  40  Ark.  175.     See  Ames 

ster  V.  Kendrick,  17  Iowa,  479;   Greene  v.  Jackson,  115  Mass.  508. 

V.  Dyer,  32  Me.  460.     As  to  rights  of  These   non-claims   statutes,   together 

action    "accruing"   after   the   death    of  with  the  local  decisions  construing  them, 

the  testate  or  intestate,  presentment  may  are  very  numerous.     The  practitioner  is 

be  made   before   they  actually  mature,  little    interested,    however,    except    in 

49   Conn.    251.      A   claim   based   on   a  knowing  the  practice  of  his  own  -State, 

deceased  surety's  obligation  in  a  guard-  For  an   English  statute  somewhat  cor- 

ian's  bond  need  not  be  presented.     60  responding,  see  Act   22   &    23   Vict.  c. 

Miss.  987.     A  claim  which  will  certainly  35;    24  W.  R.  371.     Where  the  repre- 

be  due  when  A  dies  is  not  a  "  contin-  sentative  may  ordinarily  relieve  a  debt 

gent "  claim.     78  Ala.  130.  not    barred    in    his   decedent's    lifetime 

A  claim  which  the  executor  or  admin-  from  the  general  statute  of  limitations, 

istrator  objects  to  ought  to  be  properly  as  contrasted  with  this  special  one,  yet 

proved.     63  Miss.  31;    38  La.  Ann.  947;  in  a  bill  to  marshal   assets   he   cannot 

67   How.   Pr.   346.      What  a  "  succinct  relieve   some   and    hold   others   Isarred. 

statement"    of   the    claim    must    show.  72  Ga.  495;    supra,  §§   389-391.     He 

See  102  Ind.  521;    104  ib.  327.     Filing  cannot  waive  the  bar  of  non-claim.    lb.; 

of  a  claim  against  the  deceased  consti-  77  Ala.  553. 

tutes  a  sufficient  demand.    104  Ind.  327.  ■^  O'Donnell   v.   Hermann,  42   Iowa, 

One  may  lose  his  right  as  some  codes  60;   39  N.  J.  Eq.  501.     Statutes  require 

run,  if  he  files  but  fails  to  prove.     67  sometimes  notice  or  a  demand  upon  the 

Iowa,  458.  executor  or  administr.ator  before  suing. 

4  Bush,  405;   Busb.  (N.  C.)  L.  127. 


§420 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


exercises  a  direct  supervision  in  the  establishment  of  indi- 
vidual claims  upon  a  decedent's  estate,  to  a  greater  or  less 
degree.^  As  some  local  statutes  prescribe,  the  claimant 
must  first  present  his  claim  for  allowance  to  the  represen- 
tative, upon  whose  refusal  application  may  be  made  to  the 
probate  court,  with  notice  to  him.  In  various  other  States, 
the  practice  is  for  the  probate  court  to  allow  each  separate 
claim  before  it  is  paid.^  A  probate  court  does  not  commonly 
order  allowance,  however,  in  any  such  sense  as  to  prevent 
the  legal  representative  from  contesting  the  claim  ;^  nor,  in 
general,  so  as  to  impair  the  validity  of  the  creditor's  claim, 
or  his  right  of  action  elsewhere.^  One  object  of  requiring 
presentment  to  the  probate  court  is  the  due  classification 
and  record  of  the  admitted  demands  upon  the  estate.^  The 
general  policy  indicated  is,  that  neither  the  administrator 
nor  the  probate  court  shall  have  power  to  settle  a  claim  not 
authenticated,  presented,  allowed,  and  approved,  according 
to  the  statute.  The  representative  may  object  to  any  such 
claim,  and  oppose  its  admission.^     But  a  claim 'admitted  by 


^  Hudson  V.  Breeding,  7  Ark.  445; 
6  Ark.  437. 

2  Thayer  v.  Clark,  48  Barb.  243  ; 
Danzey  v.  Swinney,  7  Tex.  617;  23 
Cal.  362;  Dixon  v.  Buell,  21  111.  203. 
A  court  of  equity  will  not  assume  juris- 
dicti(3n  of  a  claim  in  general  until  the 
claimant  shall  have  exhibited  it  and 
had  it  allowed  in  the  county  court. 
Blanchard  v.  Williamson,  70  111.  647. 

^  Magee  v.  Vedder,  6  Barb.  352  ; 
Swenson  v.  Walker,  3  Tex.  93;  Propst 
V.  Meadows,  13  111.  157;  Scroggs  v. 
Tutt,  20  Kan.  271. 

*  Branch  Bank  v.  Rhew,  37  Miss. 
no;  Stanford  v.  Stanford,  42  Ind. 
485;  Rosenthal  v.  Magee,  41  111.  371. 
But  non-presentment  may  afford  the 
estate  a  defence  to  an  action  brought 
against  it  to  recover  the  demand.  Whit- 
more  V.  San  Francisco  Union,  50  Cal. 

145- 

In  States  where  claims  are  duly  filed 
in  court,  it  is  usual  for  the  statute  to 
require  that  they  be  authenticated  by 
the  affidavit  of  the  creditor  before  they 

5 


can  be  allowed  against  the  estate.  The 
admission  of  an  aduiinistrator  that  the 
claim  is  just,  or  an  order  for  its  pay- 
ment by  the  proliate  court,  is  a  sufficient 
establishment  in  Indiana.  3  Ind.  504. 
Whatever  is  a  good  defence  against  a 
suit  on  a  claim  is  equally  good  against 
its  allowance  by  the  probate  court.  24 
Miss.  173;  2  Greene  (Iowa)  208.  A 
claim  against  an  estate  has  no  judicial 
standing  in  the  probate  court  until  it 
has  been  allowed  and  approved;  and 
until  it  has  been  rejected,  either  by  the 
administrator  or  the  probate  judge,  it 
has  no  judicial  standing  in  any  other 
court.     7  Tex.  617. 

^  Small  sums  may  be  paid  by  the  ex- 
ecutor or  administrator,  under  some 
statutes,  without  a  previous  allowance 
by  the  court;  but  such  requirements 
cannot  be  evaded  by  splitting  a  single 
and  entire  demand  into  demands  of  the 
excepted  amount.  Clawson  v.  McCune, 
20   Kan.    337.     See  2  Greene   (Iowa) 

595- 
6  4  Redf.  490.     The  verbal  statements 

14 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  42O 


the  executor  or  administrator,  and  thus  allowed  and  classified 
by  the  probate  court,  has,  in  many  States,  the  dignity  and 
effect  of  a  judgment.^ 

This  filing  of  claims  is  not  an  uncommon  incident  of  bank- 
ruptcy and  insolvency  practice  ;  but,  with  reference  to  the 
estate  of  a  decedent  which  proves  insolvent,  a  statutory 
course  is  marked  out  by  our  several  codes.  And  even  in 
States  where  an  ordinary  executor  can  pay  no  claims  that 
have  not  been  judicially  approved  and  must  defend  the  estate, 
and  require  proof  ;  an  executor  who  has  given  bond  as  resid- 
uary legatee  can  settle  claims  at  his  discretion  and  no  one 
can  question  his  acts  in  this  respect  but  his  sureties  when 
his  course  has  brought  them  into  trouble.^  Where  upon 
appeal  from  a  probate  court  a  claim  is  allowed  and  the  repre- 
sentative has  sufficient  assets,  he  should  pay  the  same  as 
though  it  had  been  originally  allowed  by  the  probate  court.  ^ 


of  an  executor  or  administrator  that  the 
claim  is  all  right  and  will  be  paid  as 
soon  as  he  has  money,  will  not  ex- 
cuse the  creditor  from  a  formal  present- 
ment of  the  claim.  40  N.  J.  Eq.  59; 
67  Iowa,  458.  In  Louisiana  the  repre- 
sentative is  estopped  from  contesting  a 
claim  which  he  has  placed  on  the  list 
for  settlement,  unless  he  can  show  error 
on  his  part  caused  by  the  other  party's 
fraud.  35  La.  Ann.  858.  A  claim  duly 
allowed  by  an  administrator  need  not 
be  allowed  by  a  successor  again.  39 
Ohio  St.  112. 

Probate  courts  may  upon  general 
statute  notice  make  needful  orders  for 
settlement  and  distribution  without  the 
actual  intervention  of  all  parties  inter- 
ested. And  the  remedy  of  a  party  ag- 
grieved by  its  classification  of  claims  for 
payment  is  by  appeal;  not  by  original 
suit  elsewhere.     61  Tex.  213. 

Claims  are  thus  ranged  in  various 
classes  agreeably  to  the  local  code.  Al- 
lowance of  a  claim  is  not  conclusive  of 
its  validity  under  many  codes.  Where 
one  is  administrator  of  both  the  creditor 
and  debtor  estate,  no  formal  present- 
ment and  allowance  is  needful.  39 
Ohio  St.  112. 


1  Tate  V.  Norton,  94  U.  S.  Supr.  746; 
Carter  v.  Engles,  35  Ark.  205. 

Claims  of  non-resident  creditors  may 
be  admitted  with  those  of  resident  cred- 
itors under  a  rule  of  comity,  and  with 
like  restrictions.  Findley  v.  Gidney,  75 
N.  C.  395;  Miner  v.  Austin,  45  Iowa, 
221;   Howard  v.  Leavell,  10  Bush,  481. 

In  New  York  a  decree  of  the  surro- 
gate court  establishing  the  indebtedness 
of  an  estate  appears  to  be  binding  upon 
the  legal  representative,  and  conclusive, 
both  as  to  the  indebtedness  and  the  ob- 
ligation of  the  representative  to  make 
payment  as  decreed.  Thayer  v.  Clark, 
48  Barb.  243.  The  evidence  to  sustain 
a  claim  need  not  appear  of  record;  and 
a  probate  decree  ascertaining  and  allow- 
ing a  claim,  and  ordering  the  executor 
or  administrator  to  pay  it,  is  not  a  tech- 
nical "judgment  "  without  authority,  but 
a  mere  ascertainment  of  its  validity  and 
amount,  which  remains  to  be  satisfied 
according  to  law.  Little  7'.  Sinnett,  7 
Iowa,  324.  And  see  Magraw  v.  Mc- 
Glynn,  26  Cal.  420. 

2  Durffee  v.  Abbott,  50  Mich.  278; 
Wheeler  v.  Hafheway,  58  Mich.  77. 

3  Berkey  v.  Judd,  31  Minn.  271. 


515 


§421  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  421.  Funeral  Charges  and  their  Priority.  —  Funeral  charges 
are  not,  to  speak  accurately,  debts  due  from  the  deceased, 
but  charges  which  the  law,  out  of  decency,  imposes  upon 
the  estate ;  and  so  far  as  these  are  reasonable  in  amount, 
they  take  legal  priority  of  all  such  debts,  as,  likewise, 
do  the  administration  charges.^  A  decent  burial  should 
comport  with  the  condition  of  the  deceased  and  the  amount 
of  his  fortune.  Justice  to  creditors,  as  well  as  to  one's 
surviving  family,  demands,  however,  that  there  shall  be  no 
extravagant  outlay  to  their  loss.^  If  due  regard  to  the 
character  and  social  or  public  standing  of  the  deceased 
requires  a  more  costly  funeral,  public  or  private  liberality 
should  defray  the  additional  cost. 

The  standard  of  reasonable  burial  expenses  is  established 
by  local  and  contemporary  usage ;  for  religious  and  humane 
sentiment  carries  the  cost  far  beyond  what  mere  sanitary 
rules  might  prescribe,  and  that  sentiment  should  not  be 
outraged.  In  strictness,  observed  Lord  Holt  in  an  early 
case,  no  funeral  expenses  are  allowable  in  an  insolvent 
estate,  except  for  the  coffin,  ringing  the  bell,  and  the  fees 
of  the  clerk  and  bearers ;  pall  and  ornaments  are  not  in- 
cluded.^ This  statement,  though  inappropriate  to  our  times, 
suggests  that  the  line  be  drawn  so  as  to  include  what  is 
necessary  in  the  sense  of  giving  a  Christian  burial,  exclud- 
ing the  ornamental  accompaniments,  and  provision  for 
mourners  and  strangers  which  they  might  make  for  them- 
selves. Thus,  at  the  present  day,  the  undertaker's  and 
grave-digger's  necessary  services  should  be  allowed  in  addi- 
tion to  those  pertaining  to  the  religious  exercises  ;  also  the 
cost  of  a  plain  coffin  or  casket,  the  conveyance  of  the 
remains  to  the  grave,  and  the  grave  itself ;  all  these  being 
essential  to  giving  the  remains  a  decent  funeral.  On  the 
other  hand,  mutes,  weepers,  pall-bearers,  in  needless  array  ; 

^  To  these,  local   American   statutes  ^  Shelley's  Case,  I  Salk.  296.     Burn 

add  expenses  of  last  illness,  as  among  well  suggests  that  the  expenses  of  the 

preferred  claims.     See  post.  shroud  and  digging  the  grave  ought  to 

2  2  Bl.  Com.  508;    Wms.  Exrs.  968;  have  been  added.     4  Burn  Ecc.  L.  348, 

Parker  v.  Lewis,  2  Dev.  L.  21 ;  Flint-  8th  ed.     As  to  a  suit  of  clothes  to  lay 

barn's  Appeal,  11  S.  &  R.  16.  out  the  deceased  in,  see  2  Tenn.  Ch.  369. 

516 


9    m 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  42 1 

carriages  for  mourners,  and  especially  carriages  for  ca.iual 
strangers  ;  floral  decorations,  refreshments,  hired  musical 
performances ;  and  the  processional  accompaniments  of  a 
funeral,  —  all  these,  though  appropriate,  often,  to  the  burial  of 
those  who  are  presumed  to  have  left  good  estates,  are  inap- 
propriate to  the  poor,  the  lowly,  and  those  whose  creditors 
must  virtually  pay  or  contribute  to  the  cost.  Public  demon- 
strations which  increase  the  outlay,  the  attendance  of 
societies  to  which  the  deceased  belonged,  military  and  civic 
escorts,  and  the  like,  are  always  properly  borne  by  such 
bodies  or  by  the  public  thus  gratified,  rather  than  imposed 
as  a  charge  upon  a  private  estate  which  cannot  readily  bear 
the  burden.  1 

The  religious  persuasion  of  the  deceased,  or,  perhaps, 
of  his  immediate  family,  may  be  fairly  considered  in  deter- 
mining the  character  and  items  of  cost  in  the  funeral ; 
thus,  Jewish,  Christian,  and  Pagan  usages  differ  on  these 
points,  likewise  Catholic  and  Protestant,  nor  do  all  Protes- 
tant sects  agree  among  themselves.  National  habits,  and 
those  of  one's  birthplace,  besides,  deserve  consideration, 
whatever  be  the  last  domicile.  The  presumption  is  that  the 
deceased  has  desired  to  be  buried  in  accordance  with  the 
usages  and  customs,  civil  and  religious,  of  the  society  to 
which  he  belonged,  and  so  as  to  retain  its  respect.^  But 
the  last  express  wishes  of  the  deceased  may  well  be  com- 
plied with,  in  directing  the  style  and  character  of  the  funeral, 
provided  these  wishes  be  not  extravagant  or  unreasonable, 
and  no  injustice  be  done  to  creditors  and  others  in  interest  ;^ 
and  the  sanction,  too,  of  one's  immediate  family  is  an  ele- 
ment of  some  importance  in  arrangements  so  delicate, 
which  necessarily  depend  more  upon  the  presumed  than  the 
actual  condition  of  one's  estate. 

Keeping  these  elements  of  distinction  in  view,  the  stand- 

^  Hewett    V.    Bronson,    5    Daly,    I;  as  to  the  funeral  obsequies  of  a  Hindoo 

Shaeffer  v.  Shaeffer,  54  Md.  679.      If  testator,  i  Knapp,  245;  Wins.  Exrs.  971. 

public  or    benevolent    societies    defray  But  a  vicious  usage  cannot  be  set  up. 

part  of  the  cost,  only  the  excess  can  be  Shaeffer  v.  Shaeffer,  54  Md.  679. 

charged  to  the  estate.     iiPhila.  135.  ^ 'ir,et    Stag   v.   Punter,  3    Atk.    119; 

*  Hewett  z/.  Bronson,  5  Daly,  I.    See,  Donald  i/.  McWhorter,  44  Miss.  102. 


«    « 


§  421  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

ard  of  allowance  for  funeral  expenses  may  be  often  regu- 
lated most  conveniently  by  fixing  a  sum  total.  Thus,  the 
English  practice,  prior  to  Lord  Hardwicke's  day,  was  to 
allow  at  law  only  40s.,  then  £$,  and  afterwards  p^io, 
for  the  funeral  of  a  deceased  insolvent ;  ^  but  English  cases, 
by  no  means  modern,  justify  the  allowance  of  ^20  in 
such  cases.2  There  are  American  decisions  bearing  upon 
this  point. ^  The  standard  varies  essentially,  however,  with 
the  age  and  locality  ;  as  between  city  and  country  or  polished 
and  simple  communities ;  and,  in  general,  according  to 
the  testator's  station  in  life ;  all  this  aiding,  doubtless,  in 
fixing  a  scale  of  prices  which,  even  in  such  simple  items 
as  the  cost  of  a  coffin,  may  vary  greatly.  Though  one 
should  prove  to  die  insolvent,  his  social  condition  and 
apparent  means  might  yet  have  justified  a  funeral  in  accord- 
ance with  his  expectations  and  those  of  his  kindred  ;  espe- 
cially, if  the  personal  representative  had  not  reason  at  the 
time  for  suspecting  the  estate  insolvent.*  Special  circum- 
stances, too,  may  justify  an  expenditure  unu'sually  great 
in  one  or  more  particulars  ;  as  if  one's  local  fame  should 
forbid  a  funeral  strictly  private  ;  ^  or  one  should  die  far 
from  home  or  from  his  proper  burial-place  ;^  though,  even 
here,  the  limited  means  at  the  fair  disposal  of  the  executor 
or  administrator  should  not  be  transcended  in  careless  dis- 
regard of  legal  claimants,  but  public  or  private  benefactions 
should  make  up  the  rest. 

Items  not,  perhaps,  strictly  within  the  rule  of  funeral 
charges,  have  been  allowed  from  an  estate,  out  of  regard 
to  particular  circumstances  or  a  decedent's  last  directions. 
Thus   a   moderate    allowance    is    sometimes    made   in   the 


1  Bull.  N.  P.  143;   Stag  V.  Punter,  3  *  3  Atk.  119;   Wms.  Exrs.  969,  970. 
Atk.  119.  ^  Prec.  Ch.  261. 

2  Bayley,  J.,  in  Hancock  v.  Podmore,  ^  In  Stag  v.  Punter,  3  Atk.  119,  Lord 
I  B.  cS:  Ad.  260;  Yardley  v.  Arnold,  i  Hardwicke  allowed  ;^6o  for  the  funeral 
C.  &  M.  434.  expenses  of  a  testator,  dying  apparently 

3  Where  the  estate  is  insolvent,  not  with  a  good  fortune,  who  had  directed 
more  than  $200  should  be  allowed  for  his  burial  at  a  place  thirty  miles  distant 
a  funeral.     28  La.  Ann.  149.     No  more  from  the  place  of  his  death.     See  also 
than  S300  under  any  circumstances.     3  Hancock  v.  Podmore,  i  B.  &  Ad.  260. 
MacArthur,  537. 

518 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  421 

executor's  or  administrator's  accounts  for  the  mourning 
apparel  of  the  widow  and  children ;  ^  or  even  for  "  mourning 
rings"  distributed  among  near  relatives  ;2  though,  in  the 
case  of  an  insolvent  estate,  especially  where  the  insol- 
vent was  a  person  of  no  distinction,  such  charges  seem 
hardly  proper.-'^  And,  over  carriages  used  for  the  immediate 
family  of  the  deceased,  and  other  incidental  charges  of 
trivial  amount,  vexatious  dispute  is  undesirable ;  *  for,  if 
one  dies  without  leaving  the  means  of  paying  his  creditors, 
those  naturally  dependent  upon  him  must  needs  suffer,  too. 
Foolish  and  extravagant  funerals  ordered  by  those  not  im- 
mediately concerned  in  the  estate  are  not  to  bind  the  repre- 
sentative and  the  immediate  family  of  the  deceased. 

Claims  founded  in  the  expenses  incurred  by  relatives 
of  the  deceased  in  attending  the  funeral,  their  services 
and  time,  are  not  to  be  favored  in  settling  a  decedent's 
estate ;  for  these  are  presumably  offices  of  respect  and 
tenderness,  gratuitously  rendered,  and  neither  purchased  nor 
solicited.^  But  it  may  be  otherwise  where  services  valu- 
able to  the  estate  are  rendered,  upon  the  same  occasion, 
and  especially  by  one  not  otherwise  bound  in  honor  to 
attend  ;  or  where  the  attendance  was  at  the  express  request 
of  the  dying  person  ;  and  these,  according  to  circumstances, 

1  2  Cas.  temp.  Lee,  508;  Wood's  her  estate  with  the  cost.  Staples's  Ap- 
Estate,  I  Ashm.  314;  Holbert,  Succes-  peal,  32  Conn.  425.  So  is  it  with  a  minor 
sion  of,  3  La.  Ann.  436.  child;   and  where  an  insolvent  and  his 

2  Paice  V.  Archbishop  of  Canterbury,  wife  and  young  child  while  travelling  in 
14  Ves.  364.  a  distant   State  were   all   killed  by   the 

^  Johnson  v.  Baker,  2  C.  &  P.  207;  same  accident,  the  expenses  of  sending 

Flintham's  Estate,  11  S.  &  R.  16.  home  and  burying  all  three  were  allowed 

*  Save  so  far  as  one  surviving  spouse  as  a  preferred  claim  against  the  estate 

may  be  legally  bound  to  bury  the  other  of   the  insolvent.     Sullivan  f.   I  lurner, 

(see  Schoul.  Has.  &  Wife,  §§  412,  437) ;  41  N.  J.  Eq.  299.     Schoul.  Dom.  Rel.  § 

a  claim  might  sometimes  be  set  up  in  199.     Under  an  Ohio  statute  a  married 

connection  with  providing  for  a  funeral  woman's   estate   may   be    charged   witk 

at  a  private  house,  sufficient  to  furnish  a  such  expenses,  even  though  a  husband 

consideration    for    troublesome    special  leaving    property    should    survive    her. 

items,  of  small  consequence,  which  cred-  McClellan  v.   Filson,  44  Ohio  St.   184. 

itors  incline  to  dispute.  The  same  effect  has  been  given  in  chan- 

The  common  law  rule  makes   it  the  eery  where  the  wife  has  separate  prop- 
husband's  duty  to  defray  the  expense  of  erty.      M'Myn,  Re,  33  Ch.  D.  575. 
burying  his  deceased  wife  in  a  suitable  ^  Lund  v.  Lund,  41  N.  H.  355. 
manner,  and  he  ought  not  to  charge 


§  422  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

may  be  classed  among  funeral,  last  illness,  or  administra- 
tion charges.  Thus,  extraordinary  cases  may  arise  where 
the  expense  of  summoning  kindred  from  a  distance,  or  of 
accompanying  the  remains  to  or  from  some  distant  point, 
or  of  procuring  some  needful  or  desired  attendance,  as  for 
opening  the  will  or  examining  papers,  may  properly  be 
allowed  in  the  accounts  of  an  executor  or  administrator.^ 

In  general,  allowances  for  a  funeral  depend  much  upon 
whether  the  estate  was  insolvent  or  not,  and  whether  items 
in  the  account  presented  are  objected  to  or  not  by  parties 
interested.  For  those  entitled  to  the  surplus  of  an  ample 
estate  may  all  agree  to  bear  the  cost  of  a  most  extravagant 
funeral. 

§  422.  Funeral  Charges;  Place  of  Final  Interment,  Grave- 
stone, etc.  —  Funeral  charges,  in  the  literal  sense,  are  always 
to  be  incurred  in  haste,  usually  without  the  means  of  ascer- 
taining the  true  state  of  the  decedent's  fortune  or  who  may 
rightfully  share  it,  and  often  at  the  discretion  of  some  near 
relative  or  friend,  without  sanction  from  an  undisclosed 
legal  representative.  But  the  first  funeral  charges  are  not 
necessarily  the  last ;  and  those  last,  the  representative  should 
fix  upon  with  much  deliberation.  Circumstances  may  justify 
a  temporary  interment,  pending  the  final  settlement  of  the 
estate. 

The  purchase  of  a  burial  lot  or  tomb,  when,  as  often  hap- 
pens, the  deceased  owned  none  at  his  death,  may  thus  be- 
come a  matter  for  delicate  adjustment  between  one's  legal 
representative  and  members  of  his  immediate  family  ;  the  last 
having  usually  the  right  of  selection,  and  claiming  from  the 
estate,  in  return,  what,  according  to  the  decedent's  condition 
and  circumstances,  would  be  fair  remuneration  for  his  own 
place  of  final  interment,  and  as  to  themselves  holding  the 
title  to  the  lot  or  tomb,  with  the  remaining  burial  rights 
therein,  as  statute  or  the  cemetery  rules  may  determine.     As 

^  Jennison  v.  Hapgood,  10  Pick.  77;  attending  a  funeral,  are  held  improper 

Mann  v.  Lawrence,  3  Bradf.  Sur.  424;  items  for  allowance.  Shaeffer  z/.  Shaeffer, 

Wall's  Appeal,  38  Penn.  St.  464.     Din-  54  Md.  679. 
ner  and  horse  feed,  provided  for  those 

520 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  422 

to  any  estate,  and  an  insolvent's  estate  in  particular,  there  is 
no  legal  reason  why  the  executor  or  administrator  should  pay 
in  full  for  land  or  a  tomb  in  which  others  than  the  decedent 
are  to  have  burial  rights  ;  while  it  is  certain  that  for  his  own 
last  resting-place  or  burial  right,  a  decedent's  estate  ought  to 
be  charged.  Provisions  relating  to  the  place  of  burial  are 
frequently  made,  however,  in  one's  last  will ;  ^  and  directions 
may  thus  be  given  by  the  general  owner  as  to  the  use  and 
care  of  the  lot  his  remains  are  to  occupy.  The  expense  of 
fencing,  preserving,  and  improving  a  lot,  where  others  are  in- 
terred, is  not  justly  chargeable  otherwise  upon  the  estate 
of  a  particular  occupant ;  while  public  cemeteries  are  usually 
inclosed  at  the  cost  of  the  company  or  the  public.^  The 
choice  of  a  burial-place  is  regulated,  to  some  extent,  by  the 
means  and  condition  of  the  deceased.  As  to  its  care,  im- 
provement, and  preservation,  moreover,  sole  ownership  may 
involve  present  liabilities  whose  recompense  is  to  be  found 
in  the  sale  of  other  burial  rights  later  ;  nor  does  the  title 
necessarily  vest  in  the  executor  or  administrator,  but  rather 
in  a  surviving  spouse  or  heirs.  Disinterment  or  re-burial  is 
justified  in  a  variety  of  suitable  instances.^ 

Gravestones  or  a  monument  are  items  of  cost  allowable  to 
a  reasonable  amount  in  the  settlement  of  the  estate.*  Some 
sort  of  marker,  to  identify  and  protect  the  remains,  seems 
highly  proper  in  all  cases  ;  but,  beyond  this,  the  choice  takes 
so  wide  a  range,  from  the  needful  to  the  highly  ornamental, 
that    the   discretion   of   the   court  has  often   been   invoked. 

1  See  Cool  v.  Higgings,  23  N.  J.  Eq.  ^  See  3  Dem.  524  ;  Watkins  v. 
308;  Luckey,  Re,  4  Redf.  265.  A  tes-  Romine,  106  Ind.  378. 
tator  who  directed  by  his  will  that  a  *  Local  codes  sumetiines  s.inction  ex- 
suitable  monument  should  be  erected  pressly  the  erection  of  suitable  iiionu- 
over  his  grave,  left  a  large  fortune,  in  ments  at  the  reasonable  e.\pense  of  the 
great  part  to  charities;  and  J>6,000  was  estate;  and  this  includes  a  power  of 
held  not  an  unreasonable  amount  to  ex-  doing  what  is  needful  to  keep  the  monu- 
pend  for  the  monument.  Cannon  v.  ment  in  proper  condition  during  the 
Apperson,  14  Lea,  553.  time  of  the  administration.  But,  aside 
^  Tuttle  V.  Ro!)inson,  33  N.  H.  104  ;  from  this,  executors  have  been  allowed 
Barclay's  Estate,  11  Phila.  123.  Statutes  to  make  necessary  repairs  upon  a  tomb 
regulate  this  subject  to  some  extent.  lb.  or  monument  although  a  provision  for 
^5351  is  not  unreasonable  for  a  burial  such  repairs,  which  turns  out  iiisuffi- 
lot,  where  the  estate  amounted  to  cient,  was  made  in  the  will.  Bell  v. 
$13,000.     4  Redf.  265.     See  3  Redf.  8.  Briggs,  63  N.  H.  592. 

521 


§422 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


The  general  rule  of  funeral  charges  here  applies,  that  no 
precise  sum  can  be  fixed,  but  the  standard  must  vary  with 
local  price  and  usage,  the  station  in  life  of  the  deceased,  and 
the  extent  of  his  fortune.  Even  as  against  creditors,  the 
expense  of  a  modest  gravestone  has  been  allowed  ;  though 
it  is  admitted  that  an  estate  can  be  settled  in  avoidance  of 
such  outlay ;  while  it  would  appear  that  in  some  States  no 
gravestone  can  be  charged  to  an  insolvent  estate  against  the 
consent  of  creditors.^  As  to  statutes  and  monuments  of 
costly  design,  the  executor  or  administrator  ought  either  to 
have,  besides  an  ample  estate,  the  explicit  directions  of  the 
deceased  as  his  warrant,  or  the  consent  of  the  heirs,  or  the 
previous  approbation  of  the  probate  court  ;  and  his  safer  and 
more  natural  course  is,  in  general,  to  let  the  family  and  those 
interested  in  the  surplus,  or  nearest  to  the  deceased,  fix  upon 
something  appropriate  in  structure,  design,  and  inscription  ; 
binding  the  estate,  on  his  part,  only  for  a  reasonable  propor- 
tion of  the  cost,  if  the  cost  be  large,  and  requiring  them  to 
stand  responsible  for  any  excess.^     Where  the  cost  of  a  mon- 


1  See  Brackett  v.  Tillotson,  4  N.  H. 
208.  Such  a  rule  ought  not,  we  think, 
to  be  inflexible;  but  to  vary  somewhat 
with  circumstances,  nor  in  any  case  to 
exclude  the  cost  of  a  simple  marker. 
Tombstones,  in  the  proportion  of  about 
$2,0  to  an  estate  of  $3,000,  have  been 
allowed  in  various  American  cases. 
Lund  V.  Lund,  41  N.  H.  355  ;  Jennison 
V.  Hapgood,  10  Pick.  77 ;  Fairman's 
Appeal,  30  Conn.  205;  Springsteen  v. 
Samson,  32  N.  Y.  714.  In  an  estate  of 
$11,096,  the  executor's  allowance  for  a 
monument  (the  residuary  legatee  op- 
posing) was  cut  from  $1,455  to  half  that 
sum.  4  Redf.  95.  An  administrator 
may,  on  his  own  contract,  render  the 
estate  liable  for  suitable  gravestones, 
and  especially  if  the  estate  be  not  in- 
solvent. Ferrin  v.  Myrick,  41  N.  Y. 
315;  Porter's  Estate,  77  Penn.  St.  43. 
And  see  Mass.  Pub.  Stats,  c.  144,  §  6. 
An  expensive  monument,  however,  is 
hardly  to  be  erected  at  the  sole  discre- 
tion of  a  personal  representative.  But- 
ler, J.,  lays   the   rule   down  quite  cau- 


tiously on  this  point  in  Fairman's 
Appeal,  30  Conn.  205.  And  Lund  v. 
Lund,  41  N.  H.  355,  disapproves  of 
the  erection  of  expensive  monuments 
without  the  previous  assent  of  the  heirs, 
etc.  Special  circumstances  ought  to 
justify  a  liberal  expenditure  of  this  kind; 
as  where  there  is  a  fair  balance,  but 
only  distant  relatives  who  are  so  scat- 
tered and  numerous,  that  distribution 
will  hardly  justify  the  cost,  and  the  only 
relative  who  can  be  easily  consulted 
approves  the  plan. 

In  general,  the  cost  of  erecting  a 
headstone  at  the  grave  may  be  allowed 
to  the  representative  as  "  funeral  ex- 
penses," but  only  to  the  extent  of  pro- 
viding for  a  decent  burial,  according  to 
the  amount  of  the  estate.  Owens  v. 
Bloomer,  21  N.  Y.  Supr.  296.  Nor  can 
a  widow  of  the  deceased  bind  the  repre- 
sentative or  the  estate  for  a  monument 
erected  on  her  own  responsibility  and 
order.     Foley  v.  Bushway,  71   111.  386. 

2  Where  one  leaves  a  good  estate, 
and  no  children    or    near  kindred,  the 


522 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


§  4: 


ument  is  to  be  defrayed  by  friends  of  the  deceased  or  the 
public,  a  similar  mutual  consultation  and  understanding  is 
proper.  Monuments  and  memorials  of  the  deceased,  which 
have  no  connection  with  funeral  charges  or  the  place  of  final 
interment,  cannot,  of  course,  be  made  a  burden  upon  the 
estate  to  the  detriment  of  unwilling  parties  in  interest.       But 


cost  of  a  handsome  monument  which 
the  widow  desired  may  be  allowed ;  but 
pictures  of  the  deceased,  and  other  per- 
sonal memorials  for  the  gratilication  of 
the  living,  are  not  properly  chargeable 
to  the  estate  of  the  dead.  McGlinsey's 
Appeal,  14  S.  &  R.  64.  I'istorius's 
Appeal,  53  Mich.  350.  A  delicate  re- 
gard for  all  those  whose  pecuniary 
interests  are  likely  to  be  diminished  by 
the  funeral  charges  should  influence 
the  legal  representative;  but,  at  the 
same  time,  if  the  estate  be  solvent,  he 
need  not  permit  penurious  and  unfeeling 
kindred  to  rob  the  deceased  of  the  last 
decent  tributes  to  his  memory.  Funeral 
charges  are,  by  legal  intendment,  enough 
for  decency  and  no  more ;  but,  by  the 
agreement  of  those  interested,  and  con- 
tributions by  them  or  others,  outside  of 
the  estate,  or  (if  the  estate  be  ample) 
under  a  testator's  express  directions,  the 
strict  legal  limit  may  be  far  exceeded, 
and  expenses  incurred,  ,  by  way  of 
memorial  to  the  deceased,  which  have 
no  immediate  connection  at  all  with 
funeral  or  burial.  In  Bainbridge's  Ap- 
peal, 97  Penn.  St.  482,  the  court  refused 
to  control  the  discretion  of  an  executor 
in  using  the  entire  residue  of  the  estate, 
after  paying  certain  legacies,  in  erecting 
a  monument;  such  being  the  testator's 
direction  in  his  will. 

The  better  opinion  is  that,  the  duty 
thus  fairly  performed  for  the  benefit  of 
the  deceased,  the  expenses  constitute  a 
charge  upon  his  estate  so  far  as  they 
were  reasonal)le  and  necessary;  and  that 
the  law  imjilies  a  promise  on  the  part 
of  the  executor  or  administrator  to  pay 
them,  so  far  as  the  assets  suffice  for  this 
and  the  other  first  preferred  charges, 
including  his  own;   not,  however,  to  the 

52 


extent  of  compelling  him  to  defray  them 
from  his  private  means,  where  he  has 
disclaimed  personal  liability  and  pleads 
the  want  of  assets.  Wms.  Exrs.  1788; 
Tugwell  V.  Heyman,  3  Camp.  298; 
Ilapgood  V.  Houghton,  10  Pick.  154; 
Patterson  v.  Patterson,  59  N.  V.  574, 
cases  cited.  See  supra,  §  398.  And  as 
to  set-off,  see  86  N.  C.  158.  One  who, 
in  the  absence  or  neglect  of  the  legal 
representative,  incurs,  from  the  neces- 
sity of  the  case,  and  pays  such  expenses, 
may  avail  himself  of  this  implied  promise 
for  his  own  reimbursement;  and  if  the 
expenditure  conforms  to  his  reasonable 
observation  of  the  decedent's  property, 
and  with  the  decedent's  apparent  condi- 
tion in  life,  payment  in  full  is  proper, 
consistently  with  the  other  first  preferred 
claims,  even  though  the  estate  should 
turn  out  insolvent.  Patterson  v.  Patter- 
son, 59  N.  Y.  574;  Rooney,  AV,  3  Redf. 
(N.  Y.)  15;  supra,  §  398.  If  the  ex- 
pense be  not  unreasonable  the  consent  of 
the  next  relatives  is  not  needful.  Lutz 
V.  Gates,  62  Iowa,  513.  Especially  if 
the  widow  desired  it.  Pistorius's  Ap- 
peal, 53  Mich.  350. 

As  to  a  debtor  of  the  deceased  who 
furnished  an  unsuitable  coffin  and  then 
tried  to  have  its  cost  deducted  from  his 
debt,  see  92  N.  C.  471. 

But  for  what  is  not  apparently  reason- 
able or  necessary,  as  against  the  estate, 
and  especially  in  charges  like  that  of  a 
monument,  which  may  be  postponed 
until  the  appointment  of  a  legal  repre- 
sentative, after  the  condition  of  the  es- 
tate was  known,  the  widow,  relative,  or 
stranger  cannot  bind  the  estate  or  its 
representative  upon  any  such  implied 
promise.  Foley  v.  Bushway,  71  III.  386; 
Samuel  v.  Thomas,  51  Wis.  549.    Rather 

3 


§  423  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

with  or  without  the  consent  of  these,  the  probate  court  may 
conclude  how  much  should  be  expended.^ 

§  423.  Other  Preferred  Claims;  Administration  Charges; 
Debts  of  Last  Sickness.  —  Administration  charges  rank  w'th 
those  of  the  funeral  in  taking  a  general  precedence  of  cred- 
itors' demands.  What  administration  charges  should  thus  be 
allowed,  we  shall  best  consider  in  a  later  connection.^ 

Statutes  in  various  States  rank  the  necessary  expenses  of 
a  decedent's  last  sickness  under  preferred  claims  ;  ^  though 
the  rule  is  of  modern  creation,  nor  does  it  to  this  day  obtain 
in  England.*  A  physician's  services,  proper  medicines,  the 
attendance  of  a  nurse,  may  be  thus  claimed  ;  and  probably, 
if  the  last  illness  occurred  in  a  stranger's  house,  a  reasonable 
recompense  for  the  use  of  premises,  and  injury  done  to  beds 
and  bedding,  and  under  various  special  circumstances,  perhaps, 
food  and  personal  services  ;  always,  however,  rating  such  ex- 
penditures according  to  the  place,  character,  and  extent  of 
the  last  illness,  and  ranking  all  together.  No  precise  rule  can 
be  laid  down  as  to  the  duration  of  one's  last  illness,  nor  for 
the  degree  of  attention  paid  ;  this  must  vary  with  the  nature 
of  the  disease  and  the  situation  of  the  patient.^  Unlike  ad- 
ministration and  funeral  expenses,  these  are  not  charges 
growing  out  of  one's  death,  but  rather  debts  due  from  the 

does  the  expenditure  bind  the  person  Hooker,  i   Hawks.  394.     A  physician's 

who  took  the  responsibility  of  contract-  charge  ''or  a  post  mortem  examination, 

ing  for  it.     Foley  v.  Bush  way,   71    III.  made  on  a  coroner's  inquest,  is  not  a 

386.     That  the  administrator  knew  the  proper  claim  against  the  estate.     Smith 

work  was  being  done,  and  did  not  ob-  v.  McLaughlin,   77  111.  596.     Nor  is  a 

ject,  is  insufficient  here  to  charge  him.  charge    fur    medical    services    rendered 

lb.     And  see  Lerch  v.  Emmett,  44  Ind.  to  the  family  of  the  testate  or  intestate 

331.     And  one,  like  a  rich  relative  or  after  his  decease.     Johnston  z'.  Morrow, 

friend,    who    incurs    funeral    or    burial  28  N.  J.  Eq.  327. 

charges  upon  his  own  express  under-  ^  Crapo  v.  Armstrong,  61  Iowa,  697; 

taking  to  bear  the  cost,  cannot  charge  62  ib.  513. 

the  estate  afterwards.     See  Coleby   v.  ^  See  post,  Part  VII. 

Coleby,  12  Jur.  N.  s.  476.  ^  Mass.  Gen.  Stats,  c.  99,  §  l;  Wilson 

Before  the  executor  or  administrator  v.  Shearer,  9  Met.  507. 

can  be  sued  on  a  demand  for  funeral  *  Wms.  Exrs.  968,  988. 

charges,  it  is  held   that  he   should  be  ^  Percival  v.  McVoy,  Dudley  (S.  C.) 

notified,  within  a  reasonable  time,  of  the  337;    Huse  v.   Brown,   8  Greenl.   167; 

amount  due,  with  proper  items.     Ward  Flitner  z/.  Hanley,  18  Me.  270;   Elliott's 

V.   Jones,    Busb.    L.    127;    Gregory   v.  Succession,  31  La.  Ann,  31. 

524 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  42$ 

deceased  for  services  rendered  him  during  his  life;^  yet  a 
similar  necessity  may  cause  them  to  be  rendered  independ- 
ently of  one's  consent,  and  a  similar  policy  favors  their 
priority.2 

§  424.  These  Preferred  Claims  rank  together ;  Settlement  in 
Full  or  Ratably.  —  All  charges  and  claims,  whether  pertain- 
ing to  funeral  or  last  illness,  which  are  of  the  same  legal 
degree  of  preference,  are  to  be  paid  out  on  the  same  footing ; 
and  so,  we  may  assume,  in  advance,  as  to  administration 
charges.  And  where  the  assets  are  not  sufficient  to  pay  all 
these  preferred  claims  in  full,  they  must  with  little  formality 
be  divided  ratably  ;  ^  for  the  policy  of  our  law  does  not  favor 
declaring  an  estate  insolvent,  merely  for  the  sake  of  distrib- 
uting assets  among  such  claimants.^ 

§  425.  General  Payment  of  Debts;  Rule  of  Priority  — We 
now  come  to  the  general  payment  of  debts  and  demands 
against  an  estate.  Where  the  assets  are  ample  for  the  adjust- 
ment of  all  claims  in  full,  there  can  be  little  occasion  for 
closely  observing  rules  of  legal  priority  ;  this  priority  denoting, 
not  the  time  for  payment,  but  the  dignity  of  the  claim.  When, 
however,  a  deficiency  occurs,  and  the  estate  is  a  slender  one, 
the  executor  or  administrator  should  regard  such  rules  care- 
fully ;  for,  if  he  pays  an  inferior  claimant  in  full,  and  leaves 
not  enough  afterwards  to  settle  all  the  superior  claims  which 
may  in  due  time  be  presented,  he  cannot  plead  a  want  of 
assets,  but  must  respond  out  of  his  own  estate;"   and  so />ro 

^  United  States  v.  Eggleston,  4  Saw-  Hart  t>.   Jewett,    11    Iowa,   276.      And 

yer  (U.  S.  Cir.)  199.  statutes  require   their  timely  presenta- 

^  We   shall    see,    hereafter,   that    the  tion.     See   Elliott's  Succession,  31   La. 

statute  allowance  to  a  widow  and  young  Ann.  31.     Funeral  expenses  and  those 

children,   in    various    States,    may   also  of  last  illness  rank  as  a  preferred  claim; 

take  precedence  of  general  debts  due  and  the  allowance  of  both  as  one  item, 

from  the  deceased  person's  estate.     C.  if  to  the  same  claimant,  is  not  invalid. 

2,  post.     Under  the  Georgia   code   the  Booth  v.   Radford,  57  Mich.  357;    Mc- 

support  of  family  for  a  year  has  prece-  Clellan  v.  Filson,  44  Ohio  St.  184. 

dence  over  the  physician's  bill.     73  Ga.  Funeral    expenses    are    preferred    to 

741.  judgments  unless  the  statute  is  explicit. 

3  See  Bennett  v.  Ives,  30  Conn.  329.  41  N.  J.  Eq.  244;   cf.  14  Phila.  569. 

But  these  preferred   claims   appear  by  *  See  /'os/,  §  446. 

some  codes  to  rank  in  consecutive  order.  *  2  Bl.  Com.  41 1 ;  Wms.  Exrs.  989. 


§  426  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

rata  as  to  other  claims  of  equal  dignity,  for  all   such   should 
be  paid  proportionally  alike. 

Generally  speaking,  when  the  estate  of  a  deceased  person 
prov'es  insolvent  or  insufficient  to  meet  all  the  demands  pre- 
sented, it  shall,  after  discharging  preferred  claims,  be  applied 
to  the  payment  of  his  debts  in  a  prescribed  order  of  classifi- 
cation. If  there  is  not  enough  to  pay  the  debts  of  any  class, 
the  creditors  of  that  class  shall  be  paid/;v  rata  ;  and  no  pay- 
ment shall  be  made  to  creditors  of  any  class  until  all  those 
of  the  preceding  class  or  classes,  of  whose  claims  the  execu- 
tor or  administrator  has  notice,  are  fully  paid.^ 

§  426.  Rules  of  Priority  ;  English  Classes  enumerated.  — 
Under  the  English  law,  as  formerly  stated,  (i)  debts  due  the 
crown,  by  record  or  specialty,  occupy  the  first  class,  these 
taking  precedence  of  all  dues  to  a  private  subject.^  (2)  Next 
come  miscellaneous  debts  to  which  particular  statutes  accord 
a  certain  precedence.^  (3)  To  these  succeed  debts  of  record ; 
among  which  judgments  or  decrees  rendered  *  against  the 
deceased  are  preferred  both  to  recognizances,  or  penal  obli- 
gations of  record,  and  the  now  obsolete  securities  by  statute, 
which  were  likewise  a  sort  of  bond  by  record.*  (4)  Debts  by 
specialty  follow,  as  on  bonds,  covenants,  and  other  instru- 
ments sealed  and  delivered  ;  under  which  head,  by  construc- 
tion, a  debt  for  rent  is  included.^  (5)  Last  in  order  come 
simple  contract  debts,  or  such  as  are  founded  in  parol  or  writ- 
ing, not  under  seal.^ 

This  enumeration  carries  the  classification  to  an  extreme 

1  Mass.  Gen.  Stats,  c.  99;  Wms.  Exrs.  a  deceased  functionary,  the  regimental 

992;    Moore  v.   Ryers,  65    N.    C.   240.  dues  of  a  deceased  officer  or  soldier,  and 

Joint    debts    must  be  paid   pari  passu  claims  of  a  "  friendly  society  "  on  its  de- 

with  separate  debts.     Pearce  v.  Cooke,  ceased  manager,  are  among  those  thus 

13  R.  I.  184.  ranked.     lb.     P'rom    the    language    of 

^  Wms.  Exrs.  991-993;    2  Inst.  32;  some  of  these  statutes,  it  might  be  in- 

Cro.  Eliz.  793;    3  Bac.  Abr.  tit.  Exors.  ferred  that  not  even  crown  debts  shall 

L.    2.     Probate   duties   are    by   statute  take  precedence.     6  Ves.  99. 
placed  on  the  footing  of  debts  due  to  *  Wms.    Exrs.    997-1009,   and   cases 

the  crown.     Act  55   Geo.  III.  c.   184;  cited;   2  Bl.  Com.  341. 
Wms.  Exrs.  993.  ^  9  Co.  88  b;  Wms.  Exrs.  1010-1024. 

»  Wms.  Exrs.   994,  995;    6  Ves.  98,  «  Bac.  Abr.  tit.  Exors.  L.  2;    Wms. 

441,  804.     Moneys  owing  the  parish  by  Elxrs.  1025,  1026;   2  Bl.  Com.  511. 

526 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  426 

limit.  And  to  pass  over  the  demands  of  the  second  class, 
which  are  of  a  purely  arbitrary  and  exceptional  kind,  those 
of  the  third,  fourth,  and  fifth  classes,  must  needs  provoke 
much  controversy.  Thus,  as  to  the  third  class,  judgments 
rendered  against  the  decedent,  whether  prior  in  point  of  time 
or  not,  are  preferred  to  recognizances  and  statutes  of  that 
class,  and  of  course  to  all  debts  by  specialty  or  simi)le  con- 
tract ;  but  the  judgment  must  have  been  rendered  in  a  court 
of  record ;  ^  and  the  rank  is  accorded  only  to  domestic  and 
not  to  foreign  judgments. ^  In  English  practice,  a  judgment 
which  is  entered  against  the  decedent  after  his  decease  hap- 
pening between  verdict  and  judgment,  shall  take  priority 
like  a  judgment  entered  during  his  lifetime ;  for  it  is  the 
judgment  which  was  confessed  by  the  deceased,  or  obtained 
by  compulsion  against  him,  to  which  the  law  assigns  su- 
periority.^ But,  as  respects  a  judgment  rendered  later,  and 
in  fact  standing  of  record  against  the  executor  or  administra- 
tor himself,  no  such  priority  applies  ;  for,  as  between  the 
representative  and  the  creditor,  the  judgment  must  be  satis- 
fied by  the  representative  out  of  his  own  property,  if  the 
estate  proves  insufficient ;  while,  as  concerns  the  estate  itself, 
the  creditor  stands  superior  only  to  others  whose  claims  were 
of  equal  degree  with  that  sued  upon,  by  reason  of  his  inferior 
diligence  in  prosecuting  it.'*  In  order  to  maintain  their 
priority  in  the  administration  of  the  estate,  judgments  against 
the  deceased  must,  in  modern  practice,  be  docketed  ;'^  while, 
as  among  themselves,  neither  the  cause  of  action  nor  the 
order  of  docketing  can  give  one  judgment  precedence  of 
another.^  A  decree  in  equity  ootained  against  the  deceased, 
is  equivalent  to  a  judgment  at  law,  in  respect  of  priority  in 

'  As  to   what    courts   are    courts   of  ^  See  various  statutes  enumerated  in 

record,  see  Wms.  Exrs.  997,  998;   Holt  Wms.  Exrs.  998-1003;    Kemp  v.  Wad- 

V.  Murray,  I  Sim.  485.  dingham,  L.  R.  i  Q.  B.  355;    stat.  23  & 

^  2  Vern.    540;    Walker  v.   Witter,  24  Vict.  c.   38;   Fuller  v.   Redman,  26 

Dougl.  I ;    Harris  Z'.  Saunders,  4  B.  &  C.  Beav.  600. 

411.  8  Wms.    Exrs.    1004,    1740;    Wentw. 

8  5  Co.  28  b;  Wms.  Exrs.  998,  1740;  Off.  Ex.  269,   14th  ed.     But  of  several 

Burnet  v.  Holden,  i  Mod.  6;  Colesbeck  judgment  creditors,  he  who  first  sues  out 

V.  Peck,  2  Ld.  Raym.  1280.  execution   must   be   preferred,  and  the 

*  Wms.  Exrs.  999,   looo;  Ashley  v.  executor  may  elect  to  whom   he    shall 

Pocock,  3  Atk.  308.  pay  first.     Wms.  Exrs.  1004. 

527 


§  42/  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

the  administration  ;  but  not  if  the  decree  did  not  conclusively 
ascertain  a  sum  actually  due,  but  required  an  account,  or  re- 
lated to  some  collateral  matter,  such  as  foreclosing  a  mort- 
gage.^ As  for  a  recognizance  or  security  by  statute,  which, 
though  an  obligation  or  bond  of  record,  is  postponed  to  judg- 
ments of  record  and  decrees,  there  must  be  a  record  or 
enrollment  in  order  to  place  it  above  specialty  debts  ;  inde- 
pendently of  which  formality,  it  should  rank  among  them.^ 

§  427.  The  same  Subject.  —  As  between  specialty  and 
simple  contract  debts,  under  the  foregoing  classification,  it 
is  not  the  mere  recital  in  a  deed,  but  the  obligation  operating 
by  force  of  undertakings  in  an  instrument  under  seal  which 
entitles  the  specialty  debt  to  priority.^  And  where  one  who 
was  bound  with  the  deceased,  as  surety  or  co-obligor,  pays 
the  bond,  his  claim  upon  the  estate  is  held  to  be  only  that  of 
a  simple  contract  creditor,  inasmuch  as  the  specialty  itself 
has  been  paid  off;*  a  legal  refinement  not  commended  by 
American  courts,  discarded  by  a  late  English  statute,  and 
admitted  to  have  no  force  where  the  original  bond  still  sub- 
sists.^ A  demand  founded  in  a  broken  covenant,  is  a  specialty 
debt,  whether  it  be  for  damages  merely,  or  some  specific  sum  ;  ® 

1  Prec.  Ch.  79;  Searle  v.  Lane,  2  favor  such  construction,  but  rather 
Vern.  89;  3  P.  Wms.  401  «.  /  Wilson  v.  that  a  joint  and  several  bond  was  in- 
Lady  Dunsany,    18  Beav.    299;    Wms.     tended. 

Exrs.  1005.  3  ivens  z'.  Elwes,  3  Drew.  25;   Wms. 

2  Bothomly  v.  Fairfax,  i  P.  Wms.  Exrs.  1012;  Lacam  v.  Merlins,  i  Ves. 
334;  Bac.  Abr.  Execution;  Wms.  Exrs.  Sen.  313;  Robinson's  Executor's  Case, 
1006-1010.  6  De  G.  M.  &  G.  572. 

When  two  are  bound  jointly  and  sev-  *  Copis  v.  Middleton,   I  Turn.  &  R. 

erally,  and  upon  the  death  of  one  the  224;  Priestman  v.  Tindal,  24  Beav.  244. 
other  becomes  his   executor,  the  latter  ^  19  &  20  Vict.  c.  97,  §  5;    Wms. 

may    discharge    the    bond    out    of    the  Exrs.    1013,   1014;    Ware,  £x  parte,  5 

estate  of  the   former;    and  it    has  not  Rich.    Eq.    473;     Drake   v.    Coltraine, 

been  uncommon  in  England,  when  one  Busb.   L.    300;    Howell  v.    Reams,    73 

man  is  surety  for  another,  for  the  surety  N.  C.  391;    Hodgson  v.  Shaw,   3  M.  & 

to  be  constituted  executor  of  the  princi-  K.  183.     The  sum  due  on  an  adminis- 

pal,  that  his  indemnity  maybe  the  better  tration  bond  is  not  a  specialty  debt  due 

secured.     Rogers  v.  Danvers,  i   Freem.  to    the     administrator    de    bonis    non. 

128.    But  if  the  deceased  was  bound  by  Parker  v.  Young,  6  Beav.  261. 
a   purely  joint   obligation,  the   survivor  ®  Plumer  v.  Marchant,  3  Burr.  1380; 

alone  would  continue  liable.     Rogers  v.  Broome  v.  Monck,   10  Ves.  620;    Pow- 

Danvers,  I    Freem.  128;    Richardson  v.  drell  w.  Jones,  2  Sm.  &  G.  305;    Wms. 

Horton,  6  Beav.  185.     Equity  does  not  Exrs.  1017. 

528 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  428 

and  breaches  of  trust  may  be  similarly  regarded  when  com- 
mitted by  violation  of  the  terms  of  the  sealed  instrument,^ 
though  not  necessarily  when  conveyance  was  made  by  deed 
to  a  trustee  without  covenant  on  his  part.^  Debts  by  mort- 
gage rank  also  with  specialty  debts,  where  there  is  a  bond  or 
covenant  for  the  payment  of  money  ;  otherwise,  they  consti- 
tute only  a  simple  contract  debt  with  security.''^  Debts  by 
specialty,  due  at  some  future  day,  take  priority  of  debts  by 
simple  contract,  since  provision  should  be  made  for  them  ; 
but  obligations  of  indemnity  or  other  contingent  debts  by 
specialty,  which  may  never  become  payable  at  all,  cannot 
thus  obstruct  debts  actually  due  of  an  inferior  rank ;  *  though 
where  the  contingency  happens  by  breach  of  the  condition, 
the  security  will  stand  like  other  specialty  debts  as  to  assets 
then  existing.^  Finally,  simple  contract  debts  embrace  all 
which  are  founded  in  parol  and  written  engagements  not 
under  seal,  including  sums  due  on  bills  and  promissory  notes, 
and  transactions  by  word  of  mouth.*^ 

Such  was  the  dissatisfaction  in  later  times  upon  these  pref- 
erential distinctions  between  the  specialty  and  simple  con- 
tract debts  of  deceased  persons,  that  Parliament  interfered,  a 
few  years  ago,  with  an  act  abolishing  all  such  priorities." 

§  428.  Rules  of  Priority  ;  American  Classes  enumerated.  — 
The  American  rules  of  priority  among  claimants,  like  those 
relating  to  the  insolvent  estates  of  deceased  persons,  are  fixed 
by  local  statutes  by  no  means  uniform.     But,  in  most  parts 

^  Cas.  temp.  Talb.   109;    Benson  v.  Exrs.  1024;  Musson  ?/.  May,  3  Ves.  &  B. 

Benson,    i    P.    Wms.    130;    Turner   v.  194. 
Wardle,  7  Sim.  80.  ^  Wms.  Exrs.  1025,  1026. 

2  As   a    rule,  it   would   appear    that  '  See  stat.  32  &  t,^  Vict.  c.  46,  which 

breach  of  trust  can  constitute  no  spe-  places    specialty    and    simple    contract 

cialty     del)t,    where    the     trustee    has  creditors  on  an  equal  footing  as  to  the 

not    executed    the  deed.     Wms.    Exrs.  estates  of  all  persons  dying  on  and  after 

1020;    Richardson  v.  Jenkins,  i   Drew.  January   i,   18-70;   Wms.  Exrs.  preface, 

477.  ion.     The  priority  of  judgment  credi- 

2  3  Lev.  57;   Cro.  Eliz.  315.  tors,  however,  is  still  recognized.    Smith 

*  See  Wms.  Exrs.  1022-1025;  Atkin-  v.  Morgan.  L.  R.  5  C.  P.  D.  337.     See 

son  V.  Grey,  i  Sm.  &  G.  577;  Collins  v.  Shirreff  j'.  Hnsings,  25  W.  R.  842,  as  to 

Crouch,  13  Q.  B.  542.  debts  under  a  lease.     For  the  right  of 

5  Cox  V.  Joseph,  5  T.  R.  307;   Wms.  retainer  under  this  act,  see  §  439;   31 

Ch.  D.  440. 

529 


§428 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


of  the  United  States,  the  disposition  has  been  to  reduce  the 
classification  of  a  deceased  person's  debts  to  the  simplest 
system  possible ;  thereby  avoiding  the  close  discriminations 
just  noticed.  Indeed,  we  may  ascribe  in  part  the  new  Eng- 
lish statute  32  &  33  Vict.  c.  46,  to  the  force  of  American 
example ;  for  the  general  tendency  in  the  United  States  has 
long  been  to  rank  specialty  and  simple  contract  debts  (with, 
perhaps,  judgment  debts  besides)  upon  one  and  the  same 
equal  footing.^  Nor  do  claims  for  rent  appear  to  have  been 
regarded  in  this  country  as  entitled  to  a  preferred  rank,  be- 
cause of  the  incident  of  land  tenure  alone.^  Taxes  only  have 
the  decided  preference  accorded  in  the  several  States  ;  these 
claiming  the  usual  favor  of  public  dues ;  and  debts  entitled 
to  a  preference,  under  the  laws  of  the  United  States,  taking 
precedence  of  State  taxes.^  Special  preferences  are  seldom 
favored  in  our  probate  legislation. 


1  2  Kent  Com.  418,  419;  cases  cited 
post. 

2  Cooper  V.  Felter,  6  Lans.  485.  As 
to  rent  due  for  a  pew,  see  Johnson  v. 
Corbett,  11  Paige,  265. 

3  Under  our  federal  constitution,  the 
United  States  has  the  right  to  establish 
uniform  laws  on  the  subject  of  bank- 
ruptcies; a  right  which  has  been  occa- 
sionally, but  not  regularly,  exercised. 
Moreover,  the  laws  of  the  United  States 
control  all  State  laws  as  concerns  the  fed- 
eral priority.  United  States  v.  Duncan, 
4  McLean,  607;  Beaston  v.  Farmers' 
Bank,  12  Pet.  102.  In  practice.  Con- 
gress requires  simply  that  debts  due 
from  the  deceased  to  the  United  States 
shall  first  be  satisfied,  where  the  estate 
is  insufficient  to  pay  all  debts  due  from 
the  deceased.  This  priority  of  the 
United  States  extends  of  right  only  to 
net  proceeds,  after  the  necessary  charges 
of  administration,  etc.,  have  been  paid; 
it  is  a  priority  as  among  creditors.  Uni- 
ted States  V.  Eggleston,  4  Sawyer,  199. 
It  includes  the  indebtedness  of  an  in- 
dorser.  United  States  v.  Fisher,  2  Cr. 
358.  The  estate  of  a  deceased  surety, 
on  a  bond  given  to  the  United  States, 
settling  with  the  United  States,  shall  be 


subrogated  to  its  rights  as  concerns  the 
estate  of  the  deceased  principal.  U.  S. 
Rev.  Stats.  §  3468.  Taxes,  on  real  es- 
tate, paid  for  the  convenience  of  heirs, 
are  sometimes  allowable  in  accounts, 
but  not  taxes  assessed  after  partition  at 
all  events.  77  Va.  820.  When  an  ad- 
ministrator does  not  need  the  lands  of 
his  intestate  for  the  payment  of  debts, 
it  is  not  his  duty  to  pay  the  taxes  there- 
on. Reading  v.  Wier,  29  Kan.  429. 
Taxes  on  the  land,  water-rates,  etc., 
charged  before  the  owner's  decease 
may  be  properly  paid  by  the  adminis- 
trator, but  not  usually  those  accruing 
afterwards.  13  Phila.  262,  289;  3  Dem. 
369.  A  personal  tax  is  a  proper  debt 
for  payment  from  a  decedent's  estate. 
Jefferson's  Estate,  35  Minn.  296.  Taxes 
against  the  decedent  should  be  paid  at 
once  after  the  funeral  expenses,  regard- 
less of  claims  proved  and  presented. 
63  Md.  465.  Municipal  taxes  paid  in 
good  faith  and  fairly  though  afterwards 
declared  unconstitutional  or  irregular, 
should  be  allowed.  39  N.  J.  Eq.  258; 
20  Fla.  292.  Unpaid  county  taxes  are 
in  some  codes  inferior  to  taxes  due  the 
State,  to  widow's  allowances,  etc.  69 
Ga.  326. 


530 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


428 


The  American  rule '  appears  to  be  to  consider  the  rights  of 
creditors  as  fixed  at  the  debtor's  death,  according  to  their  due 


Debts  "  due  to  the  public  "  have  some- 
times a  priority  accorded  by  statute, 
though  not  over  liens  general  or  special. 
Baxter  v.  Baxter,  23  S.  C.  1 14. 

1  Thus,  the  rule,  as  laid  down  by  the 
legislature  of  Massachusetts,  contem- 
plates three  classes  in  the  following 
order:  (i)  Debts  entitled  to  a  prefer- 
ence under  the  laws  of  the  United 
States;  (2)  Public  rates,  taxes,  and  ex- 
cise duties;  (3)  Debts  due  to  all  other 
persons.  Mass.  Gen.  Stats,  c.  99.  In 
New  York,  on  the  other  hand,  the  sys- 
tem is  not  so  simple,  for  there  are  four 
classes  of  debts,  viz. :  (i)  Debts  entitled 
to  a  preference  under  the  laws  of  the 
United  States;  (2)  Taxes  assessed  upon 
the  estate  of  the  deceased  previous  to 
his  death ;  (3)  Judgments  docketed 
and  decrees  enrolled  against  the  de- 
ceased according  to  the  priority  thereof, 
respectively;  (4)  All  recognizances, 
bonds,  sealed  instruments,  notes,  bills, 
and  unliquidated  demands  and  accounts. 
2  N.  Y.  Rev.  Stats.  87,  §  27.  As  to  the 
priority  of  docketed  judgments,  etc.,  un- 
der this  statute,  see  Trust  v.  Harned,  4 
Bradf  (N.  Y.)  213;  Ainslie  v.  RadcHff, 
7  Paige,  439;  McNulty  v.  Hard,  18  N.  Y. 
Supr.  339.  This  priority  takes  effect 
without  reference  to  any  lien  of  such 
judgments  or  decrees  upon  real  estate. 
Ainslie  7>.  Radcliff,  ib.  The  judgment 
must  have  been  perfected  during  the 
life  of  the  debtor.  Mitchell  -'.  Mount, 
31  N.  Y.  356.  Priority  of  payment 
among  debts  becomes,  therefore,  in  our 
several  States,  a  matter  of  local  con- 
struction as  concerns  local  and  inde- 
pendent statutes  relating  to  this  subject. 
See  Hart  v.  Jewett,  11  Iowa,  276;  Tit- 
terington  v.  Hooker,  58  Mo.  593;  Pugh 
V.  Russell,  27  Gratt.  789. 

Debts  preferred  as  "  due  to  the  pub- 
lic "  do  not  include  debts  due  to  a  State 
bank.  Bank  v.  Gibbs,  3  McCord,  377; 
Fields  w.  Wheatley,  i  Sneed,  351;  Cen- 
tral Bank  v.  Little,  1 1  Ga.  346.  Taxes 
or  public  dues   are    in   various    States 

53 


accorded  a  priority  so  great  that  they 
may  be  sued  upon  specially,  though  the 
estate  be  pronounced  insolvent.  Bul- 
finch  V.  Benner,  64  Me.  404.  And  see 
Bowers  v.  Williams,  34  Miss.  324;  2 
Yt.  294.  But  the  taxes  thus  payable 
are  those  primarily  which  the  decedent 
was  owing  at  his  death.  Later  taxes 
follow  the  rule  of  the  statute  imposing 
them;  but  a  representative  should  not 
pay  the  assessment  upon  land  which  the 
heir  or  devisee  should  discharge;  nor 
encumber  personal  assets  with  charges 
that  do  not  properly  fall  upon  them,  nor 
the  whole  personal  estate  with  taxes 
which  concern  specific  chattels.  See 
Lucy  V.  Lucy,  55  N.  II.  9;  Deraismcs 
V.  Deraismes,  72  N.  Y.  154. 

In  various  States,  the  English  classi- 
fication has  been  more  closely  followed, 
under  statutes  now  or  formerly  in  force, 
though  the  general  policy  is  that  indi- 
cated in  the  text.  Hence  are  found 
numerous  American  decisions  as  to  pri- 
ority, some  of  which  may  here  be  stated 
for  comparison  with  the  English  decis- 
ions cited  under  that  head. 

I.  yudgmcnts. — Judgment  creditors 
(except  for  those,  as  under  the  New 
York  statute,  whose  judgments  have 
been  docketed  against  the  deceased 
before  his  death),  in  general  retain,  in 
this  country,  the  rank  that  would  be- 
long to  their  several  causes  of  action 
before  judgment.  Lidderdale  v.  Robin- 
son, 2  Brock.  159.  And  by  the  com- 
mon law  one  judgment  was  not  entitled 
to  preference  over  another  if  both  were 
docketed  at  the  debtor's  death,  unless  a 
judgment  creditor  obtained  a  preference 
by  proceedings  subsequent  to  such 
death.  Ainslie  v.  Radcliff,  7  Paige,  439. 
In  marshalling  assets,  a  dormant  judg- 
ment is  held  to  rank  with  bonds  and 
other  obligations  in  some  States.  Wil- 
liams V.  Price,  21  Ga.  507;  .State  v. 
Johnson,  7  Ired.  L.  231.  And  see 
Games  v.  Crandall,  4  Iowa,  1 51.  The 
priority  of  judgments  over  specialty  and 
I 


§428 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


rank  ;  so  that  no  one  shall,  by  superior  diligence  or  by  pref- 
erential dealings  with  the  executor  or  administrator,  or  by 


simple  contract  debts  was  formerly 
recognized  in  Kentucky.  Place  v.  Old- 
ham, lo  B.  Mon.  4CX3.  As  to  the  statute 
preference  of  "judgments,  mortgages, 
and  executions,"  see  Bomgaux  v.  Bevan, 
Dudley  (Ga.)  iio;  Commissioners  v. 
Greenwood,  i  Desau.  450.  A  State 
may  prefer  its  own  judgments  to  those 
of  other  States.  Harness  v.  Green,  29 
Mo.  316;  Jones  v.  Boulware,  39  Tex. 
367.  Cf.  Gainey  v.  Sexton,  29  Mo.  449; 
Brown  v.  Public  Administrator,  2  Bradf. 
(N.  Y.)  103.  Judgment  by  a  justice  of 
the  peace  is  of  superior  dignity  to  a  bond 
or  note;  but,  not  being  matter  of  record, 
actual  notice  should  be  given  to  the 
legal  representative.  State  v.  Johnson, 
7  Ired.  L.  231.  Judgment  entered  after 
the  defendant's  death,  upon  verdict  ren- 
dered during  his  life,  takes  full  priority. 
Miller  j^'.  Jones,  2  Rich.  393.  The  judg- 
ment passes  to  one  subrogated  to  the 
rights  of  the  original  creditor,  with  all 
its  original  privileges  and  infirmities. 
Partee  v.  Mathews,  53  ]\Iiss.  140.  As 
to  statutes  taking  away  this  preference 
and  their  effect,  see  Deichman's  Appeal, 
2  Whart.  395;  Place  v.  Oldham,  10  B. 
Mon.  400 ;  Worthley  v.  Hammond,  13 
Bush,  510.  Concerning  a  judgment 
upon  a  tort  which  dies  with  the  person, 
see  Hammond  v.  Hoffman,  2  Redf. 
(N.  Y.)  92.  And  as  to  judgments  re- 
covered after  a  fraudulent  assignment 
of  property  by  the  debtor,  see  Le  Prince 
V.  Guillemot,  i  Rich.  187.  See  also 
Davis  V.  Smith,  5  Ga.  274;  Coates  v. 
Muse,  I  Brock.  557;  Coltraine  v.  Spur- 
gin,  9  Ired.  L.  52;  Eddins  v.  Graddy, 
28  Ark.  500. 

Generally,  in  the  United  States, 
where  a  judgment  is  not  a  lien  on  the 
defendant's  land  at  the  time  of  his 
death,  the  creditor  can  only  collect  his 
debt  in  the  due  course  of  administration, 
and  his  judgment  has  no  preference  or 
priority  over  any  other  creditors  holding 
ordinary  demands.  Clingman  z/.  Hop- 
kie,  78  III.  152;  Keith  v.  Parks,  31  Ark. 

53 


664.  Judgment  liens  on  real  estate  are 
settled  in  the  order  of  their  priority. 
Kerr  v.  Wimer,  40  Mo.  544.  But  under 
the  New  York  code  it  is  otherwise. 
Supra,  p.  509;  Ainslie  v.  Radcliff,  7 
Paige,  439.  A  judgment  recovered 
against  the  executor  of  an  executor  who 
had  died  pending  a  suit  against  him  to 
recover  misappropriated  moneys  is  not 
to  be  preferred  above  the  claims  of 
creditors  generally.  Fox's  Estate,  92 
X.  Y.  93.  Docketed  judgments  in  North 
Carolina  take  effect  as  liens  according 
to  their  priority  of  date  at  the  decedent's 
death.  87  N.  C.  428.  But  a  judgment 
against  the  representative  does  not  de- 
termine the  rank  of  the  claim.     23  S.  C. 

373- 

II.  Specialty  Dehts.  —  In  some  Ameri- 
can codes,  certain  specialties  —  e.g.  mort- 
gages —  have  been  acporded  a  prior  rank 
with  judgments.  Moore  v.  Dortie,  2  Ga. 
Dec.  84.  A  specialty  debt  due  a  citizen 
is  to  be  preferred,  in  certain  States,  to 
a  simple  contract  debt  owing  the  State. 
Commonwealth  v.  Logan,  i  Bibb,  529. 
And  see  Commissioners  v.  Greenwood, 
I  Desau.  450.  Agreement  not  under 
seal  to  execute  a  bond  does  not  rank  as 
a  specialty  debt.  Johnson  v.  Slawson, 
I  Bailey  Ch.  463.  And  see  Smith  v. 
Smith,  2  Hill  (S.  C.)  Ch.   112. 

HI.  Simple  Contract  Debts. — These, 
in  some  American  codes,  are  postponed 
to  specialty  debts.  Webster  v.  Ham- 
mond, 3  Har.  &  M.  (Md.)  131.  But 
not  generally,  as  we  have  stated.  See 
Heath  v.  Belk,  12  S.  C.  582.  Some 
codes  charge  the  estate  of  a  deceased 
person,  so  as  to  make  the  wages  due 
servants  and  operatives  a  preferred 
claim.  Everett  v.  Avery,  19  Mo.  136; 
Martin's  Appeal,  35  Penn.  St.  395; 
Gaines  v.  Del  Campo,  30  La.  Ann.  245. 
It  would  appear,  by  the  better  authority, 
that  the  common  law  accords  no  such 
preference.  See  Wms.  Exrs.  1025,  com- 
menting upon  2Bl.C0m.  51 1,  and  I  Roll 
Abr.  927.     And  see  Davis  v.  Davis,  49 

2 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  429 


pushing  his  suit  to  judgment,  get  an  advantage  over  the 
others.^  Nor  are  distinctions  favored  between  legal  and 
equitable  creditors,  or  legal  and  equitable  assets  for  satisfy- 
ing their  claims. ^ 

§  429.    Claims  grounded  in  a  Tort ;  Damages,  etc.;  How^  ranked. 
—  As  torts  died  with  the  person  at  common  law,  claims  of  this 


Vt.  464.  The  claim  upon  an  estate  which 
grows  out  of  a  defective  title,  but  is 
founded  in  no  covenant  or  undertal<ing 
under  seal,  stands  only  as  a  simple  con- 
tract debt.  Laws  v.  Thompson,  4  Jones 
L.  104.  "Liquidated  demands"  are 
sometimes  distinguished  in  our  codes 
from  "  unliquidated,"  as  to  mode  of 
proof  or  otherwise.  McNulty  v.  Pruden, 
62  Ga.  135. 

^  Bosler  v.  Exchange  Bank,  4  Penn. 
St.  32;  McClintock's  Appeal,  29  Penn. 
St.  360;  Allison  V.  Davidson,  I  Dev. 
&  B.  Eq.  46;  Boyce  v.  Escoffie,  2  La. 
Ann.  872 ;  Lidderdale  v.  Robinson,  2 
Brock.  159.  And  see  statutes  noticed, 
post,  which  give  the  representative  time 
to  examine  into  the  condition  of  the 
estate  before  creditors  can  sue  him. 

2  Sperry,  Estate  of,  i  Ashm.  347. 
But  cf.  Jones  v.  McCleod,  61  Ga.  602. 
An  administrator,  having  assets  in  his 
hands,  who  fails  to  pay  off  a  judgment 
rendered  against  him  as  administrator, 
becomes  personally  liable.  Jeeter  v. 
Durham,  6  J.  J.  Marsh.  228.  Penalties 
incurred  by  the  deceased,  under  a  con- 
tract made  by  him  while  living,  must  be 
paid.  Atkins  v.  Kinnan,  20  Wend. 
241.  Or  obligations  as  a  surety.  Berg 
V.  Radcliff,  6  Johns.  Ch.  302.  Under 
Connecticut  statute  the  indorsee  of  a 
promissory  note  is  creditor  of  the  estate; 
not  the  indorser.  Meriden  Steam  Co. 
V.  Guy,  40  Conn.  163.  As  to  allowing 
an  indorsement  as  a  contingent  claim, 
see  Curley  v.  Hand,  53  Vt.  524. 

The  claim  against  one's  estate  for  a 
balance  due  as  fiduciary  of  an  estate,  such 
as  an  administrator,  trustee,  guardian,  or 
attorney,  is,  in  some  States,  treated  as 
of  special  dignity.  Johnson  v.  Brady, 
24  Ga.   131;   Curie  v.  Curie,  9  B.  Mon. 

533 


309;  Smith  V.  Blackwell,  31  Gratt.  291 ; 
Watson  V.  Watson,  i  Ga.  266 ;  Smith 
V.  Ellington,  14  Ga.  379;  Caruthers  v. 
Corbin,  38  Ga.  75;  Wilson  v.  Kirby, 
88  111.  566.  But,  by  the  usual  rule, 
breach  of  trust,  unless  founded  in  a 
specific  specialty,  constitutes  only  a 
simple  contract  debt.    Carow  v.  Mowatt, 

2  Edw.  (N.  Y.)  57;  supra,  §  427; 
Rolair  v.  Darby,  i  McCord  (S.  C.)  Ch. 
472.  See,  further,  Muldoon  v.  Craw- 
ford, 14  Bush,  125;  Van  Duzer,  Matter 
of,  51  How.  (N.  Y.)  Pr.  410. 

Whether  the  creditor  of  a  firm  should 
pursue  the  surviving  partner,  before  en- 
forcing his  claim  against  the  estate  of 
the  partner  deceased,  see  Dubois'  Case, 

3  Abb.  (N.  Y.)  Pr.  177.  But  individual 
creditors  can  insist  on  the  full  payment 
of  their  debts,  from  the  decedent's  es- 
tate, before  the  allowance  of  partner- 
ship debts  from  the  individual  assets. 
People  V.  Lott,  36  111.  447;  Higgins  v. 
Rector,  47  Tex.  361.  The  balance  due 
to  the  surviving  partner  on  adjustment 
of  accounts  is  a  proper  claim.  Babcock 
V.  Lillis,  4  Bradf.  (N.  Y.)  218. 

The  power  of  the  probate  court  to 
re-classify  and  change  its  order,  in 
States  where  such  classification  devolves 
upon  the  court,  is  sometimes  denied. 
Corsitt  V.  Biscoe,  12  Ark.  95.  It  can- 
not be  changed,  after  the  assets  have 
been  exhausted,  in  conforming  to  the 
first  decree;  but,  if  erroneous,  the  class- 
ification should  be  appealed  from  when 
made.  Nelson  v.  Russell,  15  Mo.  356. 
Or  motion  may  be  made  by  the  aggrieved 
creditor  for  a  correction  nunc  pro  tunc, 
but  not  by  injunction  against  the  repre- 
sentative. Jillett  V.  Union  Nat.  Bank, 
56  Mo.  304. 


§  430  EXECUTORS    AND    ADMINISTRATORS;  [PART  V. 

character  were  not  in  earlier  times  considered  in  connection 
with  the  settlement  of  estates.  But  suits  growing  out  of  a 
tort,  which  do  not  thus  abate  in  modern  practice,  of  which 
there  are  numerous  instances,  may  pass  sometimes  to  judg- 
ment ;  ^  though  statutes  are  found  which  expressly  declare 
the  rank  such  claims  shall  occupy.^  Breaches  of  trust,  unless 
committed  in  breach  of  some  sealed  instrument,  are  regarded 
as  simple  contract  debts  ;  ^  though,  as  we  have  seen,  a  broken 
bond  or  covenant  serves  as  the  foundation  of  a  specialty  debt.* 

§  430.    Mortgage  Debts ;   Rights  of  Creditors  having  Security. 

—  A  mortgage  debt,  notwithstanding  a  real  estate  security, 
is  payable  out  of  the  personal  assets  of  the  deceased  on  the 
usual  principles.^  A  personal  covenant  in  a  mortgage  will 
bind  the  mortgagor's  personal  estate  after  his  death.^  In  case 
the  deceased  mortgagor  was  not  seized  of  the  mortgaged 
property  at  the  time  of  his  death,  the  mortgagee  has  his 
choice,  either  to  rely  upon  such  property,  or  resort  to  the 
decedent's  estate  for  payment.'  But,  where,  the  personal 
estate  of  a  deceased  debtor  is  distributed  among  his  credi- 
tors, it  is  held  that  a  creditor,  who  has  security  upon  another 
fund  which  is  primarily  liable,  should  be  compelled  to  exhaust 
his  remedy  against  that  fund,  and  come  in  against  the  per- 
sonal estate  for  the  deficiency  only.^     And  an  administrator 

^  See  supra,  §   282;   Smith  v.  Sher-  ^  Howel   v.   Price,    i    P.  Wms.   291 ; 

man,  4  Cush.  408.  Sutherland  v.  Harrison,  86  111.  363.    But 

2  Thus,  the  important  English  statute,  as    to    exonerating    the    real    estate   by 
304  Wm.  IV.  c.  42,  which  permits  dam-  the  personal,  %ee post.  Part  VI.  c.  I. 
ages  to  be  recovered  for  injuries  done  *  Dennis  v.  Sharer,  56  Mich.  224. 

by  the  deceased  to  the  real  or  personal  "  Rogers    v.   State,   6   Ind.    31.     See 

property    of   another,    directs    that    the  Whitmore  v.  San  Francisco  Sav.  Union, 

damages  recovered  shall  be  paid  in  like  50  Cal.    145.     Where  real  estate  mort- 

order  of  administration  as  simple  con-  gaged  by  the  testator  will  probably  be 

tract   debts.     Wms.    Exrs.    1026.      See  insufficient   on    foreclosure   to  pay  the 

Hammond  v.  Hoffman,  2  Redf.  (N.  Y.)  mortgage  debt,  the  surrogate  or  probate 

92.  judge  may  direct  the  executor  or  adminis- 

3  2  Atk.  119;  Bailey  t/.  Ekins,  2  Dick,  trator  to  reserve  enough  from  the  assets 
632;   Wms.  Exrs.  ioi8.  to  meet  the  deficiency,  in  the  same  pro- 

*  Supra,  §  427;  Cas.  temp.  Talb.  109.'  portion  as  for  other  debts  of  the  same 

All   such    claims   should   be   presented  degree.     Williams    v.    Eaton,    3    Redf. 

according  to  the  usual  rules.     Halleck,  (N.  Y.)  503. 

Estate  of,  49  Cal.  in.     Statutes  some-  ^  Thus,  where  land  was  sold  subject 

times    give   these   claims  a   preference,  to    a   mortgage,    which    the    purchaser 

Supra,  §  428,  n.  covenanted  to  pay  or  assume,  the  pur- 

534 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  43O 

or  executor  has  no  right  to  redeem  property  for  the  benefit  of 
the  widow,  at  the  cost  of  an  insolvent  estate,  nor  in  general 
to  discharge  incumbrances  by  mortgage,  pledge,  or  lien,  on 
his  sole  responsibility,  and  without  judicial  order,  where  the 
estate  is  likely  to  derive  no  advantage  from  the  act,  but  rather 
the  reverse.^ 

Lien,  mortgage,  and  pledge  creditors,  in  general,  take  the 
full  benefit  of  their  security,  notwithstanding  the  death  of 
the  debtor ;  and  may  apply  such  security  in  discharge  of 
their  respective  claims,  under  the  usual  rules  and  reserving 
the  usual  equities.  Thus,  a  solicitor  or  attorney  has  a  par- 
ticular lien  ;  so,  too,  has  a  bailee  for  hire,  or  the  workman 
upon  a  certain  thing,^  or  a  banker  for  his  advances.^ 

So  far  as  pursuing  all  such  rights  against  the  estate  is  con- 
cerned, modern  codes  and  practice  often  permit  the  secured 
creditor  either  to  realize  his  security  or  have  it  valued ;  and 
where  he  elects  to  value,  he  can  only  prove  for  the  balance 
of  his  claim  less  the  valuation.*  The  security  or  securities 
are  of  course  available  by  way  of  preference,  in  accordance 
with  the  usual  legal  doctrines,  and  the  creditor  is  not  obliged 
to  resort  to  the  general  assets  like  general  creditors.^      If, 

chase-money  being  lessened  in  amount  proceedings  in  foreclosing  a  mortgage 

accordingly,    the    mortgaged    premises  where  the  deticiency  was   treated  as  a 

should  be  treated  as  the  primary  fund  valid  claim  against    assets,  Shelden   v. 

for   payment   of  that   debt.     Halsey   v.  Warner,  59  Mich.  444. 
Reed,  9  Paige,  446.     Where  the  execu-         ^  Rossiter  v.  Cossitt,    15  N.  H.   38; 

tor  or  administrator  sells    property  in-  Ashurst  z*.  Ashurst,  13  Ala.  781 ;   Shaw, 

cumbered  by  a  mortgage,  the  claim  of  C.  J.,  in  Ripley  v.  Sampson,   10   Pick, 

the  mortgagee  must  be  satisfied  out  of  373;    supra,  §  318.     As  to  discharging 

the  security  before  the  residue  can  be  a   debt   secured   by  vendor's    lien,   see 

held  for  administration  expenses,  or  the  MuUins  v.  Yarborough,  44  Tex.  14.  And 

claims  of  general  creditors;    and  only  see  Slack  v.  Emery,    30  N.  J.  Eq.  458. 
the  expenses  of  the  sale  take  precedence.  ^  Li^yj    ^_    Mason,    4    Hare,     132; 

Murray,  Estate  of,  18  Cal.  686;  Murphy  Schoul.  Bailm.  122-128. 
V.  Vaughan,  55  Ga.  361.     But  cf.  Alter         ^  Leonino  v.  Leonino,  L.  R.   10  Ch. 

V.   O'Brien,    31    La.   Ann.    452.      If   a  D.  460. 

mortgagee  does  not  present  his  claim  *  Williams  7^.  Hopkins,  29  W.  R.  767; 
within  the  limited  time  for  presentment  McClure  v.  Owens,  32  Ark.  443. 
and  the  estate  is  settled,  his  right  to  ''  As  among  different  securities,  real 
enforce  the  mortgage  is  not  affected,  and  personal,  a  pro  rata  contribution 
Smith  V.  Gillam,  80  Ala.  296.  But  he  may  be  proper  in  conformity  to  the  con- 
loses  all  right  to  hold  the  decedent's  tract.  Leonino  v.  Leonino,  L.  R.  10 
estate  for  a  deficiency.  Willard  v.  Van  Ch.  D.  460.  The  duty  of  the  executor 
Leeuwen,  56  Mich.  15.    See  as  to  equity  or  administrator  to  redeem  property  of 

535 


5    431  EXECUTORS    AND    ADMINISTRATORS.  [pART   V. 

after  realizing  upon  the  security,  a  balance  remains  due  to 
the  secured  creditor,  his  claim  for  such  balance  stands  on  no 
better  footing  than  that  of  unsecured  creditors  ;  and,  if  assets 
are  deficient,  he  should  be  paid  proportionably  with  thcm.^ 
And,  in  general,  claims  secured  by  mortgage,  pledge,  or  lien, 
are  no  exception  to  the  rule  which  requires  personal  demands 
to  be  presented  and  proved  or  sued  upon,  within  a  specified 
time,  or  else  to  be  barred  as  against  the  estate.^  Collateral 
security,  given  by  the  executor  or  administrator  for  a  debt 
due  from  the  deceased,  cannot  operate  so  as  to  place  the 
creditor  in  a  better  situation  against  the  estate  itself  than  he 
was  in  without  such  security;^  and  a  secured  creditor's  claim 
aside  from  the  worth  of  the  security  takes  no  rightful  priority. 

§  431.  Invalid  or  Exorbitant  Claims  ;  Voluntary  Transac- 
tions. —  Claims  against  the  estate,  which  have  no  legal 
validity,  must  not  be  paid ;  and  if  exorbitant  or  partially 
invalid,  the  executor  or  administrator  should  reduce  to  the 
proper  amount ;  otherwise  his  erroneous  or  excessive  pay- 
ment will  amount  to  a  devastavit,  as  against  legatees  and 
distributees  as  well  as  creditors.  A  bond  debt,  founded 
in  immoral  consideration,  or  transgressing  the  usury  laws, 
or  given  by  one  incompetent  to  contract,  comes  within 
this  rule.*  And  the  testator  or  intestate  having  died  an 
infant,  it  is  held  that    his   legal    representative    should   not 

the  deceased   under  mortgage,  pledge,  v.  Shipley,  46  Cal.   154.     See  Watt  v. 

or   execution,  where   he   has   sufficient  White,  46  Tex.  338.     The  creditor  who 

assets,  or  else  to  sell,  subject  to  the  in-  probates  his  claim  against  the  estate  is 

cumbrance,  is  found  enforced  by  legis-  not  debarred  thereby  from  proceeding 

lation,  provided  there  appears  to  be  a  to   foreclose   his    mortgage.     Simms    v. 

valuable  interest  over  and  above  the  in-  Richardson,  32  Ark.  297.    See  William- 

cumbrance.      Tuttle    v.    Robinson,    33  son  v.  Furbush,  31  Ark.  539. 
N.  H.  104.  3  Wyse  v.   Smith,  4  Gill  &  J.   295; 

^  The  rule  for  such  creditors  is  fre-  Piester  v.  Piester,  22  S.  C.  139. 
quently    defined   by    the   local    statute.         *i    Ves.    Sen.    254;     18   Ves.    258; 

See  Martin  v.  Curd,  i  Bush,  327;    Wil-  Wms.  Exrs.  1016.     A  manifestly  illegal 

liams  V.  Hopkins,  supra;  Williams  v.  expenditure  cannot  be   allowed  on   an 

Eaton,  3  Redf.  (N.  Y.)  503;   Moring  z/.  accounting.      Burke    v.    Coolidge,    35 

Flanders,  49  Ga.  594.     A  vendor's  lien  Ark.  180.     Otherwise,  as  to  debts  paid 

for  unpaid  purchase-money  is  not  a  per-  honestly,    and    not    carelessly,    without 

ferred    claim.      Kimmell   v.   Burns,   84  knowledge   that  the  consideration  was 

Ind.  370.  illegal.     Coffee  v.  Ruffin,  4  Coldw.  487. 

^  Clark  V.  Davis,  32  Mich.  154;   Pitte  And  see,  as  to  claims  of  doubtful  legality 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  432 

pay  a  debt,  not  for  necessaries,  which  required  one's  rati- 
fication on  attaining  majority  to  render  it  binding.^ 

Debts,  for  which  the  deceased  was  not  in  fact  liable, 
do  not  become  obligatory  by  directions  in  his  will  that 
"all  just  debts"  should  be  paid.^  So,  too,  though  a  vol- 
untary bond  be  good  between  the  parties,  yet,  in  the 
course  of  administration,  it  must  be  postponed  to  any  just 
debts,  though  the  latter  be  due  by  simple  contract.^  Gra- 
tuitous and  voluntary  services,  rendered  the  deceased  by 
members  of  his  own  family  or  others,  cannot  be  made  the 
basis  of  a  legal  claim  against  the  estate,  which  the  legal 
representative  should  recognize ;  there  must  have  been  a 
mutual  intention  for  recompense  either  expressed  or  to  be 
inferred  properly  from  the  circumstances  and  conduct  of 
the  parties  at  the  time  the  services  were  rendered.* 

§   432.    Claims   of   Persons    disappointed   of   a   Legacy. — As 

to  persons  in  general,  who  perform  a  service  in  expec- 
tation of  a  legacy,  mere  expectation  cannot  create  an 
enforceable  contract ;  but  a  mutual  understanding  that  the 
service  would  be  recompensed  by  a  legacy,  may,  if  shown, 
afford  the  basis  of  a  valid  claim  upon  the  estate,-  where 
the  deceased  has  left  no  will,  or  omitted,  under  his  will, 
to  make  suitable  provision.^ 

(which  appear  to  be  always  a  fit  subject  where  the  probate  court  receives,  classi- 

of  compromise),  Parker  v.  Cowell,  16  fies,  and  allows),  its  invalidity  cannot  be 

N.  H.  149.     We  may  presume  that  the  set  up  against  him  afterwards.     Owens 

general  principle  of  probate  and  equity,  v.  CoUinson,  3  Gill  &  J.  25. 
which  exempts  a  representative  from  the         Of  cliim-.   barred   by    limitations   we 

liabilities   of  extraordinary  bailee  or  in-  have  already  spoken.      Supra,  §  389. 
surer  (see  supra,  §  315),  applies  to  the         '^  Smith  v.  Mayo,  9  Mass.  62;   Mason 

payment  of  claims  in  modern  practice,  v.  Man,  3  Desau.  116. 
whether  they  turn  out  illegal  or  not.  ^  Stephens  v.  Harris,  6  Ired.  Eq.  57. 

1  Smith  V.   Mayo,  9   Mass.  62.      But         <  See  Schoul.    llus.  &  Wife,   §  274, 

see   Schoul.    Dom.   Rel.    3d  ed.,  §  402,  and  general  works  on  contracts.     And 

showing  that  the  privilege  of  avoiding  see  Shallcross  v.  Wright,  12  Beav.  558. 
passes  to  an  infant's  representatives  and         ^  Shakespeare  v.  Markham,  17  N.  Y. 

privies  in  blood,  who  may  either  avoid  Supr.  31 1,  322,  and  cases  cited;   Schoul. 

or  uphold.     See  also  Washburn  v.  Hale,  Dom.  Rel.  §§  238,  274. 
10  Pick.  429;    La  Rue  v.  Gilkyson,  4         Claims  of  children  and  near  relatives 

Penn.  St.  371;;  Smith  v.  McLaughlin,  against  a  parental  estate,  and  claims  by 
77  111-  596.     If  the  executor  or  adminis-  ■  a  surviving  sj^ouse  against  the  estate  of 

trator  in  good  faith  pays  a  claim  as  another,  are  discussed  in  other  treatises, 
allowed  by  the  probate  court  (in  a  State 

537 


§  434  EXECUTORS    AND    ADMINISTRATORS  [PART  V. 

§  433.  Decree  or  Order  for  Payment.  —  In  some  States, 
claims  being  regularly  filed  in  the  probate  court  for  classifi- 
cation and  allowance,  the  judge  or  surrogate  will  order  pay- 
ment, or,  by  decree,  establish  the  classification  and  indebted- 
ness of  the  estate ;  and,  acting  upon  such  order  in  good  faith, 
the  representative  is  protected.^  But,  except  for  insolvent 
estates,  the  rule  elsewhere  is,  to  leave  the  creditors  and  legal 
representative  to  the  usual  remedies  in  other  courts,  or 
their  private  arrangements ;  the  probate  court  confining 
itself  to  disputed  matters  specially  referred,  and  allowing  or 
disallowing  the  payments  charged  in  the  administration 
account.  Even  in  States  where  claims  are  first  allowed  and 
approved,  the  administrator's  payment,  without  a  previous 
order  of  the  court,  is  held  valid,  if  in  itself  a  proper  payment 
and  such  as  the  court  would  have  decreed.^  Local  prac- 
tice sometimes  permits  the  surrogate  or  probate  court  to 
liquidate  demands  of  an  uncertain  amount,  whether  legal 
or  equitable,  and  order  them  paid.^  The  allowance  of  a 
claim  against  the  estate  of  a  deceased  person,  .by  the  pro- 
bate court,  is,  at  least,  a  quasi  judgment,  and  cannot  be 
collaterally  impeached.* 

§   434.     Commissioners    or    Auditors    to    examine    Claims.  — 

Commissioners  or  auditors  are  sometimes  appointed,  under 
local  statutes,  to  examine  and  report  to  the  probate  court 
concerning  claims  presented  against  the  estate  of  a  deceased 
person.  The  duties  of  such  commissioners,  as  well  as  the 
occasion  for  appointing  them,  are  set  forth  at  length  in  the 
local  codes,  whose  provisions  should  be  carefully  followed.^ 

1  Arnold  v.  Downing,  11  Barb.  554;  2  Lockhart  v.   White,    18   Tex.    102. 

Cossitt  V.  Biscoe,  12  Ark.  95;   Wood  v.  See  Thompson  v.  Taylor,  71  N.  Y.  217, 

Ellis,  12  Mo.  616;   Owens  z/.  CoUinson,  ^  Babcock  v.  Lillis,  4  Bradf.  218. 

3  Gill  &  J.   25;    Lanier  v.   Irvine,   24  *  Baker  i'.  Rust,  37  Tex.  242;   supra, 

Minn.  116;   Johnson  v.  Von  Kettler,  66  §  420. 

111.63;  Jessup  V.  Spears,  38  Ark.  457.  ''Such  commissioners   are  most  fre- 

Where  a  claim  is  approved  by  the  ad-  quently   appointed   where   the  executor 

ministrator,  and  allowed  by  the  probate  or   administrator    represents   the   estate 

court,  it  cannot  be  disallowed  by  collat-  insolvent.    In  Maine,  commissioners  are 

eral   proceedings.      Smith   v.    Downes,  appointed  on  exorbitant  claims.    Rogers 

40  Tex.  57.     And  see,  as  to  matters  of  v.  Rogers,  67  Me.  456.    And  see  Buchoz 

local   practice,    Harper   v.    Stroud,    41  v.  Pray,  36  Mich.  429;   Bovd  v.  Lowry, 

Tex.  367.  53    Miss.    352;     Commercial    Bank    v. 

538 


CHAP.  I.]       DEBTS    AND    CLAIMS    UPOX    THE    ESTATE.  §  435 

§   435.    Exhaustion    of     Assets    in    paying    Superior    Claims; 
Preferences   to  be   observed  ;    Representation   of   Insolvency.  — 

An  executor  or  administrator,  \vho.se  assets  are  necessarily 
exhausted  in  paying  debts  of  the  prior  class,  is  bound  to 
plead  accordingly  when  sued  on  a  debt  of  lower  rank  ;  other- 
wise a  sufficiency  of  assets  for  both  classes  is  virtually  admit- 
ted, and  he  must  respond  accordingly.^  And  if,  upon  due 
opportunity  to  ascertain  the  condition  of  the  estate,  he 
believes  it  to  be  insolvent,  he  should  so  represent  to  the 
court  and  relieve  himself  of  undue  responsibility. ^  Hut  in 
some  States  it  is  distinctly  provided,  that  where  the  execu- 
tor or  administrator  shows  by  his  account  in  the  probate 
court  that  the  whole  estate  and  assets  in  his  hands  have 
been  exhausted  in  the  administration  and  funeral  charges, 
debts  of  last  illness,  and  other  debts  or  claims  preferred  by 
statute,  such  settlement  shall  be  a  sufficient  bar  to  any 
action  brought  against  him  by  a  creditor  not  entitled  to 
such  preference,  even  though  the  estate  has  not  been  rep- 
resented insolvent.''^  It  would  be  devastavit,  rendering  him 
personally  liable  for  the  deficiency,  if  the  executor  or  admin- 
istrator gave  preference  to  a  debt  of  lower  dignity  over  those 

Slater,  21  Minn.  72;  Capehart  v.  Logan,  ner,  31  Vt.  671.    And  see  51  Vt.  50.    But 

20  Minn.  442;    Hairland  v.  Trust  Co.,  the  probate  or  the  "county"  court  may 

108    Penn.    St.    236.     Claims    must    be  have  jurisdiction  of  such  claims.     Hall 

presented    to   them  within    a  specitied  v.  Wilson,  6  Wis.  433.     See  Clark  v. 

limited  time.     The  report  of  such  com-  Davis,  32  Mich.  154.  The  commissioners 

missioners,  as  to  the  allowance  or  rejec-  are  not  a  "court"  in  the  constitutional 

tion  of  certain  claims  submitted  to  them,  sense.      40    Mich.    503.     They    cannot 

is  usually  final,  unless  appealed  from ;  find  and  report  against  persons  who  do 

and  claims  rejected  by  them  cannot  be  not  appear.    59  Mich.  290.    Under  some 

afterwards  used   by  set-off  or  otherwise  codes  a  creditor  may  call  for  conimis- 

against  the  estate.     Rogers  v.  Rogers,  sioners  if  the  court  neglects  to  appoint 

67  Me.  456;    Probate  Court  v.  Kent,  49  them;  57  Vt.  49. 

Vt.  380.     And  even  the  probate  court         ^  i   Salk.   310;    Wms.  Exrs.  989;    2 

has    not  always    a    statutory  power  to  Bl.  Com.  511. 

accept,  reject,  or  modify  their  report  at         2  Newcomb  v.  Goss,  I  Met.  t,t,t,.    But 

discretion.     As  to   notice   of  the  time  in  modern  practice  a  judicious  executor 

and   place   for   hearing    and   examining  or  athninistrator  may  generally  bring  all 

claims,  and   the  general   proceedings  of  creditors   to  accept   a  pro   rata   allow- 

commissioners,  cf.  local  statutes;    Hall  ance,  according  all  due  priorities,  and 

z'.  Merrill,  67  Me.  H2;  insolvent  estates,  so  close  the  estate  with  less  cost  and 

§  446.    Claims  purely  of  an  equitable  or  delay. 

contingent   character  cannot  be  deter-         ^  Mass.  Gen.  Stats,  c.  97,  §  20. 
mined  by  commissioners.  Brown  v.  Sum- 

539 


§  43^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

duly  presented  of  a  higher ;  and  this  rule  is  the  same  in  law 
and  equity.^ 

§  436.  Notice  of  Debts  as  affecting  their  Payment  -with  due 
Preferences ;  English  Rule.  —  It  is  laid  down,  that  an  executor 
or  administrator  may  voluntarily  pay  a  debt  of  the  inferior, 
before  one  of  a  superior  sort,  of  which  he  had  no  previous 
notice ;  a  doctrine,  fundamental  in  character  and  rational, 
which  keeps  tardy  creditors  from  disturbing  the  settlement, 
and  which  obliges  all  who  mean  to  assert  claims  upon  an 
estate  to  present  them  in  good  season. ^  The  rule  that  the 
executor  or  administrator  must  personally  respond  as  for 
devastavit,  where  he  has  used  up  the  assets  upon  inferior 
debts,  applies  with  this  reservation  ;  ^  for,  if  he  had  no  notice 
of  the  higher  debt  in  question,  and  was  not  bound  to  take 
notice  of  it,  he  must  stand  excused.  Where,  too,  it  is  said 
that  debts  of  superior  rank  must  be  pleaded  in  bar  of  an  action 
to  recover  a  debt  of  lower  rank,  if  there  are  not  assets  enough 
for  both,  or  else  the  representative  will  be  personally  bound, 
a  like  reservation  is  to  be  understood  ;  ^  and  hence,  an  execu- 
tor or  administrator  may  plead,  when  sued  on  a  debt  of  the 
higher  rank,  judgment  recovered  without  notice  thereof  on  a 
debt  of  the  lower  rank  to  the  exhaustion  of  assets  ;  for,  unless 
he  knew  of  the  higher  debt,  he  could  not  have  prevented  a 
recovery  of  the  lower.^  As  to  debts  in  general,  actual  notice 
must  have  been  received  by  the  executor  or  administrator,  in 
order  to  preclude  this  plea ;  though,  what  this  notice,  the 
English  cases  do  not  clearly  determine.^  But,  of  judgments, 
decrees  in  equity,  and  debts  due  by  recognizance  and  statute, 
the  judicial  record  is  treated  as  affording  constructive  notice, 

1  Moye  V.  Albritton,  7  Ired.  Eq.  62;  ^  Bull.  N.  P.  178;  Sawyer  v.  Mercer, 
Gay  V.  Lenile,  32  Miss.  309;  Huger  v.  i  T.  R.  690;  3  Lev.  114;  Wms.  Exrs. 
Dawson,  3  Rich.  328;   Swift  v.  Miles,     1029. 

2    Rich.    (S.  C.)    Eq.    147;    People    v.  <>  It  is  intimated  in  i  Mod.  175,  that 

Phelps,  78  111.  147;    Howell  v.  Reams,  such    actual    notice    must    be    by   suit. 

73  N.  C.  391.     Cf.  Miller  v.  Janney,  15  But,  by  the  better  authorities,  the  execu- 

Mo.  265.  tor  or  administrator,   however  apprised 

2  2  Show.  492;  Hawkins  v.  Day,  i  of  the  existence  of  a  higher  debt,  cannot 
Dick.  155;   Wms.  Exrs.  1029.  safely    disregard.      Wms.    Exrs.    1032; 

8  Supra,  §  425.  Oxenham  v.  Clapp,  2  B.  &  Ad.  312. 

<  Supra,  §  435. 

540 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  437 

which  every  executor  or  administrator  is  bound  to  regard;' 
such  debts  being  styled  debts  of  record,  and  classed  accord- 
ingly. With  the  modern  extension  of  the  courts  and  judi- 
cial business,  this  rule  must  needs  impose  a  perilous  responsi- 
bility upon  the  legal  representative  ;  but,  except  for  requiring 
that  judgments  be  docketed  in  order  to  afford  a  constructive 
notice,  English  legislation  appears  to  have  done  nothing  to 
alleviate  the  burden  thus  imposed  upon  the  representative.^ 

§  437-  The  same  Subject;  English  Hule  as  to  Equal  Credi- 
tors ;  Creditor's  Bill,  etc.  —  Among  creditors  of  equal  degree, 
the  English  law  has  permitted  the  executor  or  administrator 
to  pay  one  in  preference  to  another  at  his  discretion  ;  a 
privilege  to  do  injustice  to  others  by  way,  perhaps,  of  recom- 
pense for  the  injustice  done  to  himself.^  This  preference 
may  be  controlled,  however,  by  proceedings  of  creditors  in 
the  courts.  For,  as  to  such  creditors  of  the  deceased,  a 
scramble  may  ensue  in  the  common-law  courts  ;  and  not  he 
who  first  commences  an  action,  but  he  who  first  recovers  a 
judgment  against  the  executor  or  administrator,  must  first  be 
paid.  If  one  such  creditor  commences  the  suit,  and  the  legal 
representative  gets  notice  of  it,  the  latter's  right  to  volun- 
tarily prefer  another  creditor  of  equal  degree,  and  then  plead 
ple7ie  advmiistravit,  becomes  checked.*  Yet  the  privilege 
is  not  wholly  lost ;  for,  by  baffling  this  litigant  until  he  has 
confessed  judgment  to  the  suit  of  another  creditor  of  equal 
degree,  or  otherwise  aided  the  other  creditor  to  recover  judg- 
ment first,  the  executor  or  administrator  still  exercises  his 
right  of  preference.^  Equity  will  not  interfere  with  such  an 
election  ;^  nor  do  the  courts  of  common  law  preclude  his  plea 
puis  darrein  continuance,  that  judgment  was  confessed  in  the 
latter  suit,  after  he  has  pleaded  the  general  issue  to  the 
former ;  nor  even  require  that  the  debt  confessed  was  known 

1  Cro.  Eliz.  763;    Searle   v.  Lane,  2  *  Ashley    v.    Pocock,    3    Atk.    208; 

Freem.  104;   Wms.  Exrs.  1031,  1032.  Wms.  Exrs.  1033,  1034. 

^  Stat.  4  &  5  W.  &  M.  c.  20;    Stat.  ^  Vaugh.  95;   Lyttleton  v.  Cross,  3  B. 

23  &  24  Vict.  c.  38.  &  C.  217;    Wms.  Exrs.  1034. 

8  Wms.    Exrs.     1033;     Lyttleton    v.  ^  Lepard  v.  Vernon,  3  Ves.  &  B.  53; 

Cross,  3  B.  &  C.  322.  I  P.  Wms.  215. 


§  437  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

to  him  before  this  action  commenced.^  A  prior  plea,  con- 
fessing assets  to  a  certain  amount,  may  iiccord  a  similar 
preference.^  All  that  the  law  appears  to  insist  upon  is  bond 
fide  conduct  on  the  part  of  the  executor  or  administrator,  so 
that  the  judgment  confessed  by  him,  or  the  plea  confessing 
assets  to  a  certain  amount,  shall -disclose  what  is  truly  owing, 
or  what  is  the  true  state  of  the  assets,  with  reference  to  the 
several  creditors  suing,  and  the  time  and  circumstances  of 
the  several  suits. -^  Where,  instead  of  an  action  at  law,  pro- 
ceedings in  equity  are  commenced  against  the  executor  or 
administrator  by  a  creditor's  bill,  it  is  settled  in  England  that 
a  decree  of  chancery  against  an  executor  or  administrator  is 
equivalent  to  a  judgment  at  law  against  him  ;  *  whence,  it  fol- 
lows, that  a  decree  for  payment  must  take  priority  of  judg- 
ments at  law  later  obtained,^  and  that  by  suffering  such  a 
decree  to  be  entered  by  bill  taken  pro  confcsso,  the  executor 
or  administrator  preserves  still  his  right  in  the  courts,  of 
electing  to  prefer,  as  among  creditors  of  the  same  degree.^ 
But  proceedings  in  equity  may  be  brought  in  behalf  of  one 
creditor,  or  several,  or  all  ;  and  to  correct  the  manifest  in- 
justice of  a  preference  by  the  representative,  such  as  the 
common  law  permitted,  modern  English  practice  favors  the 
chancery  bill  brought  once  and  for  all  on  behalf  of  all  credi- 
tors of  the  deceased,  wherever  there  is  likelihood  of  insolv- 
ency, for  the  purpose  of  compelling  an  account  and  a  just 
and  ratable  distribution  of  the  assets  among  all  the  credi- 
tors." The  barrier  thus  afforded  against  the  preference 
among  claims  of  equal  rank  is  still,  however,  an  imperfect 
one ;  for,  contrary  to  analogy,  it  is  held  that  even  voluntary 
preference  may  be  made  by  the  executor  or  administrator 
pending  a  decree  upon  the  bill  ;  ^  while,  in  accordance  with 

^  Lyttleton  v.  Cross,  3  B.  &  C.  322;  to  such  a  decree,  and  due  heed  to  its 

Prince  v.  Nicholson,  5  Taunt.  333.  piecedence   in    the    courts  of  common 

2  Waters  v.  Ogden,  2  Dougl.  453.  law. 

8  Tolputt  V.  Wells,  I  M.  &  S.  395.  ^  Cas.  temp.  Talb.  217,  225. 

*  Morrice  v.  Bank  of  England,  Cas.  "^  Brady  v.  Shiel,  i  Camp.  148;  Jones 

temp.  Talb.  217;  s.  c.  2  Bro.  P.  C.  465;  v.  Jukes,  2  Ves.  jr.  518;    Mitchelson  v. 

Wms.  Exrs.  1035,  1036.  Piper,  8   Sim.    64;    Wms.   Exrs.    1036, 

^  Cas.  temp.  Talb.  217,  223.     By  in-  1037. 

junction  equity  will  enforce   obedience  *  Upon   this  point   Darston  v.   Lord 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  438 

the  common-law  doctrine,  judgments  confessed  by  the  rep- 
resentative elsewhere,  before  the  decree  is  actually  entered, 
take  precedence,  as  of  course,  among  debts  of  the  same  rank.' 
All  such  preferred  payments  are  accordingly  respected  when 
the  decree  is  entered  ;  though  as  to  creditors  who  have  re- 
ceived a  partial  payment,  chancery  will  make  no  further  pay- 
ment to  them,  until  all  the  other  creditors  are  proportionably 
paid.2 

§438.  The  same  Subject;  American  Rule. —  There  are 
American  cases  which  support  some  of  the  doctrines  above 
stated.  Doubtless,  in  this  country,  an  executor  or  adminis- 
trator who  pays  debts  of  one  class,  without  notice  of  other 
debts  entitled  to  priority,  commits  no  waste,  provided  that  in 
the  time  and  mode  of  such  payment  he  transgress  no  local 
statute.^  In  rare  instances  his  legal  right  to  give  preference 
among  creditors  of  equal  degree,  by  confessing  a  judgment, 
has  been  conceded;*  but  it  is  held  that  such  preference  is 
checked  by  the  filing  of  a  creditor's  bill  in  equity.'^  Con- 
structive notice  of  a  judgment  debt,  as  afforded  by  the  judicial 
record,  is  not  favored  in  this  country  ;  ^    nor  are  chancery 

Oxford,  Prec.  Ch.  188,  ruled  differently,  United  States  v.  Ricketts,  2  Cr.  C.  C. 
and,  as  it  would  seem,  more  reasonably;  553;  Aiken  v.  Uunlap,  16  John.  85. 
but  the  decree  was  reversed  on  appeal;  *  Wilson  v.  Wilson,  i  Cranch,  C.  C. 
s.  c.  Coles,  229.  And  see  Maltby  v.  255;  Gregg  v.  Boude,  9  Dana,  343. 
Russell,  2  Sim.  &  Stu.  227;  Wms.  Exrs.  And  equity  will  not  interfere  to  prevent 
1038;  Radcliffe,  Re,  26  W.  R.  417.  the  representative  from  giving  such 
1  Larkins  v.  Paxton,  2  Beav.  219;  preference.  Wilson  7/.  Wilson,  ib.  This 
Gilbert  v.  Hales,  8  Beav.  236.  Larkins  right  of  preference  is  not  favored  where 
V.  Paxton  indicates  how  full  the  oppor-  the  representative  was  interested  per- 
tunity  might  be  for  carrying  out  such  sonally  in  the  debt  to  which  he  con- 
a  preference,  and  how  greatly  the  estate  fesses  judgment.  Powell  v.  Myers,  I 
might  leak  away,  while  chancery  pur-  Dev.  &  Bat.  Eq.  562;  next  section, 
sued  its  tedious  processes;  for  here  the  ^  Barnawell  v.  Smith,  5  Jones  Eq. 
creditor's  suit  was  instituted  in  i8i  i,  the  168;  Overman  v.  Grier,  70  N.  C.  693. 
answers  were  got  in  about  1820,  and  ®  A  judgment  by  a  justice  of  the 
no  decree  was  entered  until  1829.  See  peace,  not  being  of  record,  requires  ac- 
Wms.  Exrs.  1039.  And  as  to  an  order  tual  notice.  State  v.  Johnson,  7  Ired. 
nisi,  see  L.  R.  8  Ch.  D.  154.  L.  231.  As  to  dormant  judgments,  see 
■^  Wilson  V.  Paul,  8  Sim.  63.  supra,  §  428.  Notice  of  a  debt  entitled 
8  Place  V.  Oldham,  10  B.  Men.  400;  to  priority  need  not  be  by  suit.  Web- 
Mayo  V.  Bentley,  4  Call  (Va.)  528.  ster  v.  Hammond,  3  Har.  &  M.  131. 
Payment,  without  knowledge  of  a  debt  And  in  Arkansas  a  docketed  judgment, 
due  the  United  States,  is  thus  justified,  unless  duly  presented  as  a  claim,  loses 

543 


§439 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


proceedings  on  the  creditor's  behalf,  where   action  at   law 
opens  the  readier  means  of  recovering  his  dues.^ 

But  the  policy  of  American  legislation  is  to  discourage 
competition  among  creditors,  and  the  whole  system  of  volun- 
tary preference;  and,  under  the  statutes  which  require  a 
presentment  of  claims  within  a  definite  period,  to  the  repre- 
sentative or  to  the  court,  a  date  is  fixed  at  which  debts  become 
absolutely  payable  from  the  estate,  according  to  their  statute 
rank,  and  the  representative  is  granted  full  immunity  as  to  all 
claims  not  brought  to  his  notice  until  afterwards,  save  as  the 
assets  then  left  may  suffice  for  meeting  them.^ 

§  439-  Debt  due  the  Representative  from  the  Estate  ;  Right 
to  retain,  etc. —  As  part  of  the  English  system  of  preference 
among  equal  creditors  at  an  executor's  or  administrator's  dis- 
cretion, the  legal  representative  has  a  right  to  prefer  his  own 
debt  to  all  others  of  equal  degree,  and  to  retain  assets  for  it 
accordingly.^     This   privilege    being    inequitable,    courts    of 

its  priority.      Keith  v.  Parks,  31  Ark.         A  claim  ought  to  be  f)resented  to  the 

664.  executor    or    administrator    in   writing, 

1  McCoy  V.  Green,  3  Johns.  Ch.  58;  although  not  positively  so  required  by 
Walker  v.  Cheever,  35  N.  H.  347.  statute;   merely  mentioning  the  approxi- 

2  Supra,  §  420.  The  Massachusetts  mate  amount,  etc.,  is  not  enough  to 
statute  provides  that  no  executor  or  ad-  avoid  the  barrier.  Pike  v.  Thorp,  44 
ministrator  can  be  held  to  answer  to  a  Conn.  450.  Under  the  California  code  if 
suit  of  a  creditor  of  the  deceased,  if  the  representative  pays  some  of  the 
commenced  within  one  year  after  he  creditors  in  part,  he  is  bound  to  pay  a 
gives  bond,  unless  it  is  on  a  demand  like  proportion  into  court  for  creditors 
that  would  not  be  affected  by  the  insol-  whose  suits  are  pending  on  their  claims, 
vency  of  the  estate  or  is  brought  after  61  Cal.  71.     And  see  60  Tex.  422. 

the  estate  has  been  represented  insol-  Provision   is   usually    made    (as    sug- 

vent  for  the  purpose  of  ascertaining  a  gested  supra,  §  420)  by  these  American 

contested    claim.      And    if,    within    the  statutes  for  protecting  the  interests   of 

year  after  giving  notice  of  his  appoint-  creditors  whose  claims  will  not  season- 

ment,  he  does  not  have  notice  of  de-  alily  accrue,  or,  under  peculiar  equitable 

mands    against    the    estate    which    will  circumstances,     cannot     be     presented 

authorize  him  to  represent  it  insolvent,  within  the  period  fixed  by  the  statute. 

he  may  proceed  to  pay  the  debts  due,  ^  Wms.   Exrs.    1039- 1050,  where  this 

without  any  personal  liability   on    that  topic  is  fully  considered;    cases  infra. 

account  to  any  creditor  who  shall  not  This  right  of  retainer  is  treated  as  aris- 

have  given  notice  of  his  claim,  although  ing  from  mere  operation  of  law,  and  the 

the  estate  remaining  should  prove   in-  incongruity  that  one  should  sue  himself 

sufficient  to  pay  the  whole.     Mass.  Gen.  or    enter    into   the    strife   among   equal 

Stats,  c.   97,  §§  16,  17.     See  Newcomb  creditors  to  procure  a  prior  judgment, 

z/.  Goss,  I  Met.  333;  Tittering  Z'.  Hooker,  2  Bl.  Com.  511;    3  Bl.  Com.  18;    Wnis. 

58  Mo.  593.  Exrs.  1039.     But  the  general  doctrine 

544 


CHAP.  I.J   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  439 

chancery  do  not  allow  its  assertion  in  respect  of  equitable 
assets,  sought  by  their  aid  ;i  though  this  right  of  retainer,  as 
regards  legal  assets,  extends  to  debts  which  may  be  due  the 
executor  or  administrator,  either  as  trustee  or  as  cestui  que 
trust,  as  well  as  individually,  and  chancery  itself  concedes  the 
principle.^  The  right  does  not,  however,  extend  to  the  gift, 
bequest,  or  transfer  of  other  creditors'  proved  debts.^  And 
there  can  be  no  right  to  retain  in  an  action  at  law  for  a  de- 
mand of  which  no  account  can  be  taken  by  a  jury,  and  which 
the  other  party  cannot  controvert;*  nor  on  a  claim  for  dam- 
ages arbitrary  in  amount,  as  for  a  tort.  The  executor  or  ad- 
ministrator, it  is  held,  may  retain  for  a  debt  whose  direct  suit 
would  be  barred  by  the  statute  of  limitations.^  But  he  cannot 
retain  to  the  prejudice  of  his  co-executor  or  co-administrator.* 
In  the  United  States,  if  the  preference  among  equal  credi- 
tors is  not  favored,  still  less  is  that  of  the  executor's  or 
administrator's  retainer  for  his  own  debt.  Confession  of 
judgment,  under  such  circumstances,  is  viewed  with  sus- 
picion, nor  will  the  judgment  be  treated  as  proof  of  the  debt,^ 

of   lien,    and   the   maxim   that   among  Exrs.  1049;   Stahlschmidt  z/.  Lett,  I  Sin. 

equals    he   in   possession   has  the  first  &  G.  415.     But  cf.  15  Lea,  438. 

claim,  may  likewise  be  considered  the  ^  11  Vin.  Abr.  72;   9  Mod.  268.    The 

foundation;    a  doctrine  which  may  be  representative    may    retain    for    assets 

invoked    still  in  aid  of  administration  which  came  to  his  hands  and  which  he 

charges,  sums   paid   and   expenses   in-  pays  over  to  a  receiver;    but  not   for 

curred  in  the  trust.  assets    collected    by    a    receiver.      The 

'  2  Eq.  Cas.  Abr.  450;  41  L.  T.  N.  s.  right  is  capable  only  of  being  exercised 

672.  against    assets    which    come    into    his 

2  Plumer  v.  Marchant,  3  Burr.  1380;  hands.     32  Ch.  D.  395. 

Cockroft  V.  Black,  2  P.  Wms.  298.  An  executor  or  administrator  cannot 

8  Jones  V.  Evans,  L.  R.  2  Ch.  D.  420.  retain  for  a  debt  due  himself  which  is 

*  Loane  v.  Casey,  2  W.  Bl.  968;  De  unenforceable  because  of  the  Statute  of 
Tastet  V.  Shaw,  i  B.  &  Aid.  664.  Frauds;  for  he  is  no  better  than  any 
Whether  the  executor,  by  instituting  an  other  creditor  of  the  estate  in  this  re- 
administration  action  on  behalf  of  him-  spect.  Rownson  Re,  29  Ch.  D.  358; 
self  and  all  other  creditors,  waives  his  supra,  §  392.  As  to  setting  off  the 
right  of  retainer,  see  Campbell  v.  Camp-  representative's  claim  from  the  estate 
bell,  29  W.  R.  233.  And  see  Richmond  against  what  he  owes  it.  See  25  Ch.  D. 
V.  White,  27  W.  R.  878.     The  right  of  175. 

retainer  is  not  affected  by  the  later  ju-  "  Smith  v.  Downey,  3  Ired.  Eq.  268\ 
dicature  act  abolishing  the  distinction  Finch  v.  Ragland,  2  Dev.  Ch.  137; 
between  specialty  and  simple  contract  Hubbard  t/.  Hubbard,  16  Ind.  25  ;  Hen- 
debts.     L.  R.  16  Ch.  D.  368.  derson  v.  Ayers,  23  Tex.  96. 

*  Hopkinson   v.   Leach,  cited   Wms. 

545 


§  439  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

It  is  held  that  the  representative  cannot  retain  for  his  own 
legacy  or  distributive  share  to  the  detriment  of  other  legatees 
and  distributees  similarly  entitled.^  And,  though  in  a  few 
States  the  English  doctrine  of  retainer  may  still  prevail,^ 
the  better  American  policy  insists  that  creditors  of  the  same 
rank  shall  have  equal  opportunity.  In  New  York  and  Mis- 
souri, the  right  of  retainer  has  been  expressly  abolished.^ 
Other  States,  in  establishing  the  system  of  classification  and 
allowance  of  claims  by  the  probate  court,  by  inference  ex- 
clude such  right.*  A  Massachusetts  statute,  to  check  abuses 
of  this  sort,  requires  further,  that,  whenever  a  debt,  claimed 
by  the  representative  as  due  to  himself  from  the  deceased,  is 
disputed  by  any  person  interested,  the  claim  shall  be  stated 
fully  of  record,  and  submitted  under  directions  of  the  probate 
court  to  referees  agreed  upon  by  the  claimant  and  the  ob- 
jecting party.^  Such  a  claim,  however  allowed,  must  take 
its  full  or  its  ratable  proportion  with  those  of  other  cred- 
itors.^ In  New  York  the  surrogate  has  jurisdiction  to 
adjudge  or  allow  a  claim  legal  or  equitable,  of'an  executor 
or   administrator,    against   the   estate    represented   by   him, 

^  Gadsden  v.  Lord,  I  Desau.  247.  see    Sanderson   v.    Sanderson,    17   Fla. 

2  Williams  v.   Purdy,  6   Paige,   166;  820.     He  cannot  sue  himself  at  law  to 

Page  V.  Patton,  5  Pet.  303;    2  Dev.  &  recover    a   debt   due  to   him  from  the 

Bat.  Ch.  255;    Harrison  v.  Henderson,  decedent,     ii  R.  I.  270. 
7  Heisk.  315;    5  Lea,  508;   Wms.  Exrs.         ^  See  also  Hubbard  v.  Hubbard,  16 

1039,   Am.  ed.,  n.  by  Perkins;    U.  S.  Ind.  25;   Henderson  v.  Ayers,  23  Tex. 

Dig.  1st  series,  Executors  and  Adminis-  96.     As  to  the  presentment  of  the  legal 

trators,  301 1-3023.  representative's    private    claim    to    the 

^  Treat    v.    Fortune,    2   Bradf.    Sur.  judge  of  probate  under  New  Hampshire 

116;    6  Thomp.  &  C.  288;    Nelson  v.  statute,  see  McLaughlin  v.  Newton,  53 

Russell,  15  Mo.  356.     And  see  10  S.  C.  N.  H.  531.    In  New  York  the  surrogate 

354.  has  power  to  pass  upon  a  disputed  claim 

*  Wright  V.  Wright,  72  Ind.  149;    4  of  an  executor  or  administrator  against 

Redf.  263,499.     It  must  be  proved  and  the  estate.     Flood,  Matter  of,  16  Abb. 

allowed  by  the  probate  court.     58  Md.  (N.  Y.)  Pr.  N.  s.  407;    6  Thomp.  &  C. 

442.  288;   4  Redf.  263.     See  text. 

^  Mass.  Gen.  Stats,  c.  97,  §§  26,  27.         This  right  of  retainer,  for  the  repre- 

Cf.    Dana   v.    Prescott,    i    Mass.    200 ;  sentative's  own  debt  against  the  dece- 

Willey  V.  Thompson,  9  Met.  329.  dent,   is   to   be    distinguished    from   his 

Whether  the  representative  who  has  claim  for  disbursements  and  the  charges 

a  claim  against  the  estate  is  bound  to  of  administration  for  which   he  has  a 

present  it  within  the  time  allowed  to  lien.  See  supra,  §  259;  §  526,  post. 
other  creditors,  where  he  retains  assets, 

546 


CHAP.   I.]       DEBTS    AND    CLAIMS    UPON    THE    ESTATE.  §  44 1 

whether  he  holds  such  claim  in  a  representative  capacity  or 
as  an  individual.^ 

§  439  a.  The  same  Subject.  —  Where  a  testator  leaves  to 
his  executor  a  less  amount  than  is  actually  due  him  in  pay- 
ment of  the  debt,  and  the  executor  proves  the  will  and  takes 
letters,  he  cannot,  it  is  held,  claim  more  than  the  amount  so 
given  him,  even  though  he  qualified  ignorantly.^  And  though 
a  will  should  give  the  executor  power  to  pay,  if  he  sees 
proper,  just  debts  barred  by  the  statute  of  limitations,  the 
executor  cannot  pay  his  own  debt  which  is  thus  barred.^ 

§  440.  Interest  on  Claims  presented. —  Interest  is  not  allow- 
able from  a  decedent's  estate,  where,  from  the  nature  of  the 
debt,  no  interest  was  due ;  and  the  claims  of  creditors  with 
whom  settlement  is  made  in  the  ordinary  course  of  adminis- 
tration, are  usually  dealt  with  on  the  footing  they  occupied 
in  this  respect  at  the  date  of  the  decedent's  death.*  Statutes 
sometimes  prescribe  a  different  rule,  however,  where  especial 
delay  arises,  as  in  the  settlement  of  an  insolvent  estate  ;  and 
upon  a  contract  with  the  representative  himself,  or  on  the 
ground  of  his  delinquency,  a  creditor  may  claim  interest  as 
against  him,  where  he,  on  his  part,  cannot  bind  the  estate  in 
return.  Bonds,  notes,  and  other  instruments,  given  by  the 
decedent,  which  expressly  bear  interest,  must,  doubtless,  be 
paid  according  to  their  tenor. 

§  44 1 .  Mode  of  paying  off  Claims ;  Uztinguishment,  etc.  — 
Debts  are  to  be  paid  in  money  which  is  legal  tender,  or 
according  to  the  original  contract,  or  as  the  creditor  and  rep- 
resentative may  mutually  agree.^  But,  as  between  the  repre- 
sentative and  the  estate,  the  prudent  interests  of  the  estate 
must  be  protected.  If  the  executor  or  administrator  pay  off 
the  debts  at  a  discount,  he  is  entitled  to  a  credit  only  for  the 
sums  paid;^   but,  in  thus  procuring  a  discount,  advantages 

1  Neilley  v.  Neilley,  89  N.  Y.  352.  *  See  Magraw  v.  McGlynn,  26  Cal. 

^  Syme  v.  Badger,  92  N.  C.  706.     Cf.  420.     As   to  the  payment  of  del)ts  in 

§  546.  Confederate  money,  see  Carruthers  v. 

8  Williams  v.  Williams,  15  Lea,  438.  Corbin,  38  Ga.  75;    McGar  v.  Nixon,  36 

*  Davis  V.  Wright,  2  Hill  (S.  C.)  560;  Tex.  289;    supra,  §  310. 

Durnford,  Succession  of,  I  La.  Ann.  92.  ^  Ileager's  Executors,   15  Johns.  65; 

And  see  78  Ky.  548.  Miller  v.  Towles,  4  J.  J.  Marsh.  255. 

547 


§  443  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

which  may  prudently  be  gained  for  the  benefit  of  the  estate, 
it  is  proper  for  him  to  secure.^ 

But  a  promissory  note  given  by  an  executor  or  administra- 
tor, for  a  debt  of  the  testator  or  intestate,  is  neither  a  pay- 
ment nor  an  extinguishment  of  such  debt;  but,  at  most,  it 
only  suspends  the  right  of  action  on  the  original  debt,  until 
the  maturity  of  such  note.^ 

A  creditor,  we  may  add,  cannot  pay  himself  by  withholding 
the  property  of  the  estate  in  his  possession  from  the  admin- 
istrator.^ 

§  442.  Personal  Liability  of  Representative  for  Debts. — 
An  executor  or  administrator,  whose  conduct  is  honest  and 
prudent,  and  whose  course  conforms  to  law,  does  not  become 
liable,  in  his  private  capacity,  for  debts  of  the  deceased,  or 
charges  against  the  estate,  concerning  which  he  entered  into 
no  express  undertaking.  If  assets  fail  to  satisfy  all  claims 
in  due  order  of  preference,  and  he  has  used  the  assets  prop- 
erly, as  far  as  they  go,  creditors  of  the  estate  cajinot  pursue 
him  farther.* 

§  443-  Payment,  or  Advancement,  out  of  Representative's 
own  Funds. —  In  American  practice,  an  executor  or  adminis- 
trator who  pays  the  debts  of  his  testate  or  intestate,  out  of 
his  private  funds,  or  advances  the  money  therefor,  has 
usually  no  right  of  subrogation  to  the  original  creditor,  and 
can  acquire  no  undue  advantage  over  heirs,  devisees,  and 
others  interested  in  the  estate,  by  doing  so.^  The  debt  be- 
comes extinguished ;  and  his  proper  mode  of  reimbursement 

^  As  to  paying   a   bank    in   its   own  promised,  the  whole  benefit  should  go 

paper,  see  Wingate  z*.  Poole,  25  111.  118.  to   the    estate.     Supra,   §   330;    Wms. 

2  Taylor  v.   Perry,  48  Ala.  240.     A  Exrs.   1842.     An  executor  or  adminis- 

receipt   of  sufficient  assets   to   pay  his  trator  will  not  be  allowed  to  settle  such 

own  debt  is  held  an  extinguishment  of  a  claim  for  less  than  its  face,  and  appro- 

that  debt  where  the  doctrine  of  retainer  priate  the  difference.     Cox  v.  John,  32 

prevails.     27  Ala.   130;   4  Dev.  103;   2  Ohio  St.  532. 
Hill,  340.     But  see  7  Heisk.  315.  •*  Eno  v.  Cornish,  Kirby  (Conn.)  297; 

'  Roiimfort  v.  McVlarney,  82  Penn.  Rucker  v.  Wadlington,  5  J.  J.  Marsh. 

St.  193.     But  as  to  charging  against  a  238;    Ritter's  Appeal,  23  Penn.  St.  95; 

fund  in  his  hands  by  way  of  set-off,  see  Orange  County  v.  Kidder,  20  Vt.  519. 
supra,  §  190.  "  Gist  v.  Cockey,  7  Har.  &  J.  135; 

If  a  claim  against  an  estate  is  com-  McClure  v.  McClure,  19  Ind.  185. 

548 


CHAP.  I.]   DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  445 

is  by  way  of  account  with  the  estate.  After  he  shows  in  the 
legal  manner  that  there  is  a  balance  due  him  from  the  estate, 
upon  faithful  administration,  he  has  a  right  to  recover  or 
retain  it  out  of  the  personalty,  if  there  be  any  left,  other- 
wise out  of  the  land,  and  thus  be  reimbursed.^ 

§444.  Recovery  of  Over-Payment  from  Creditor. — Where 
the  executor  or  administrator  has  full  authority  to  prefer 
among  equal  creditors,  as  under  the  English  rule,  he  will 
have  neither  right  nor  occasion  to  recall  his  deliberate  act.^ 
But  the  operation  of  our  American  rule  is  different.  Pay- 
ments made  without  an  order  of  the  probate  court,  which 
classifies  and  allows  claims,  are  in  some  States  irregular ;  and 
in  States  which  permit  of  a  specified  time  for  the  presenta- 
tion of  claims,  the  executor  or  administrator  incurs  a  personal 
risk  if  he  pays  any  debt  sooner,  and  if  later  claims,  season- 
ably presented,  show  a  deficiency  of  assets.  While  his  own 
liability  is  none  the  less,  in  such  a  case,  however,  it  is  gen- 
erally conceded  that  the  excess  may  be  recovered  by  him 
from  the  creditor  thus  imprudently  overpaid  ;  the  inference 
being  that  only  such  payment  as  the  estate  could  really 
afford  was  intended  by  him.^ 

§  445.  When  Heirs  or  Next  of  Kin,  etc.,  are  liable  for  Debts 
of  the  Deceased.  —  Apart  from  their  own  personal  undertak- 
ing, moreover,  heirs  and  next  of  kin  are  not  to  be  held  liable 
for  debts  of  a  deceased  person.  Where  they,  or  others  in 
interest,  are  held  responsible  at  all,  the  theory  is,  that  the 
person  has  received  property  through  the  deceased  which 
was  fairly  subject  to  the  prior  incumbrance  of  his  just  debts 
and  the  usual  charges  consequent  upon  his  death.  Statutes 
which  provide  for  the  enforcement  of  such  inchoate  and 
contingent  claims  as  may  accrue  after  the  limited  period  for 
settling  the  estate  are  framed  upon  this  theory.*     And,  since 

1  Blank's  Appeal,  3  Giant  (Pa.)  192;  Walker  v.  Hill,  17  Mass.  380;  Beatty 
Frary  w.  Booth,  37  Vt.  78;  Hill  v.  Bu-  v.  Dufief,  11  La.  Ann.  74.  But  cf. 
ford,  9  Mo.  869;  Part  VII.  c.  2,  as  to  Lawson  v.  Hausborough,  10  B.  Mon. 
allowances  on  account.     See  §  446,  «.  147. 

2  See  Johnson  v.  Corbett,  11  Paige,  *  See  Walker  v.  Byers,  14  Ark.  246; 
265.  Mass.  Gen.  Stats,  c.  97. 

8  Heard    v.    Drake,    4    Gray,    514; 

549 


§446 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


the  personalty  constitutes  the  primary  fund  for  that  purpose, 
no  liability  can  be  imposed  upon  heirs-at-law,  by  reason  of 
their  inheritance,  save  upon  a  deficiency  of  personal  assets. 
The  general  doctrine  is  here  respected,  that  one  person  can- 
not, against  his  consent,  be  rendered  liable  out  of  his  own 
means  for  the  indebtedness  of  another.^ 

§  446.  Payment  of  Debts  and  Claims  'where  the  Estate  proves 
Insolvent.  —  Where  the  decedent's  estate  is  found  insolvent, 
the  legal  priorities  among  claimants  should  be  strictly  ob- 
served ;  and  special  provision  is  made,  both  in  England  and 
various  parts  of  the  United  States,  for  a  fair  distribution  of 
the  estate,  under  such  circumstances.^ 


1  Selover  v.  Coe,  63  N.Y.  438.  For 
this  doctrine,  as  applied  to  surviving 
husband  or  wife,  see  Schoul.  Hus.  & 
Wife,  Part  VIII.  cs.  1,  3. 

■■^  See  supra,  §§  425,  435.  Embarrass- 
ing questions  often  arise  in  dealing  with 
the  insolvent  estates  of  deceased  persons; 
but,  as  statutes  of  this  character  are  of 
purely  local  origin  and  application,  no 
general  exposition  of  the  law  appears 
requisite,  beyond  what  is  elsewhere 
stated  of  the  precedence  of  claims,  the 
abatement  of  legacies,  marshalling  as- 
sets, and  creditors'  bills  in  chancery. 

In  modern  English  practice,  the  cred- 
itors' bill  in  chancery  has  become  the 
usual  resort  for  compelling  a  just  distri- 
bution of  assets  among  the  creditors  of 
a  deceased  insolvent,  as  already  indi- 
cated in  the  course  of  the  present  chap- 
ter. Wms.  Exrs.  1037;  supra,  §  437. 
See  192  B.  D.  92.  The  same  course 
must  be  pursued  in  various  American 
States,  where  chancery  jurisdiction  pre- 
vails, and  no  statute  modifications  have 
been  introduced.  A  bill  is  thus  brought 
to  marshal  assets  and  settle  the  estate. 

In  Massachusetts,  however,  the  exec- 
utor or  administrator  should  seasonably 
announce  the  fact  of  insolvency  to  the 
probate  court;  and  upon  such  represen- 
tation (which  need  not  be  made  if  the 
estate  would  be  used  up  in  paying  pre- 
ferred claims)  the  probate  court  appoints 


commissioners  to  examine  all  claims 
which  may  be  presented.  These  com- 
missioners appoint  times  and  places  of 
meetings  to  receive  claims,  examine 
claimants,  upon  oath,  if  necessary,  liqui- 
date and  balance  all  mutual  demands, 
and  make  due  return  to  the  court;  six 
months  being  the  time  usually  allowed 
for  proof  of  claims.  Upon  the  basis  of 
their  return,  the  estate  is  adjusted  under 
direction  of  the  probate  court,  appeal 
meanwhile  lying,  however,  on  behalf  of 
a  dissatisfied  creditor,  from  the  decision 
of  commissioners  to  the  temporal  courts. 
The  rules  of  procedure  in  insolvent 
estates  are  fully  detailed  in  the  statute, 
concerning  whose  interpretation  there 
are  numerous  decisions.  See  Mass. 
Pub.  Stats,  c.  137;  Smith  Prob.  Law, 
3d  ed.  c.  13. 

New  York  surrogate  law  provides  for 
an  apportionment  in  case  of  deficiency; 
and  the  method  of  ascertaining  how  the 
pro  rata  dividend  shall  be  decreed  by 
the  surrogate  is  set  forth  by  the  chancery 
courts.  Redfield's  Surrogate  Practice, 
402;  Johnson  v.  Corbett,  11  Paige,  265. 
But  a  statutory  insolvent  system  appears 
not  to  prevail  in  that  State. 

The  statutes  of  various  New  England 
and  Western  States  adopt  substantially 
the  practice  of  Massachusetts,  in  rela- 
tion to  insolvent  estates,  which  tend,  of 
course,  to  relieve  the  personal  represen- 


550 


CHAP.   I.]        DEBTS    AND    CLAIMS    UPON    THE    ESTATE.  §  446  b 

§  446  a.  Ancillary  and  Foreign  Administration  ;  Payment  of 
Debts.  —  If  an  estate  be  settled  in  the  State  where  most  of 
the  decedent's  property  is  found,  the  administration  there 
being,  however,  only  ancillary,  a  creditor  is  not  required  to  go 
there  to  collect  his  claim.  And  if,  after  such  settlement,  prop- 
erty belonging  to  the  estate  comes  to  legatees  in  the  State 
of  the  testator's  domicile,  such  creditor  may  there  proceed 
for  his  dues.^ 

§  446  b.  New  Assets  for  Payment  of  Debts.  —  As  a  general 
rule  no  property  can  be  considered  new  assets,  so  as  to  revive 
unsatisfied  claims  that  have  been  barred,  which  has  been  in 
the  hands  and  under  the  control  of  the  executor  or  adminis- 
trator, or  has  been  inventoried,  or  which  is  the  product  of 
such  property,  although  it  may  have  assumed  or  been  con- 
verted into  a  new  form.^ 

tative  from  much  of  the  responsibility  (at  all  events  in  estates  below  a  speci- 

of  settlement,  in  such  cases,  which  the  fied  value  in  assets)  to  perform  the  duty 

English  chancery  methods,  still  retained  of    examining    and    passing    upon    the 

in  many  of  the  older  States,  still  impose  claims  presented.     See   supra,  §  434 ; 

upon  them.     And  thus  the  executor  or  Gary's  Probate  Law  (Wisconsin,  Michi- 

administrator  is  not  required  to  deter-  gan,  Minnesota,  etc.),  §  368  et  seq. 

mine  between  allowing  a  claim  against  Whether  the  representative  who  ig- 

the  estate  or  taking  the  risk  of  expensive  norantly  pays  a  creditor,  and  then  finds 

litigation  in  regard  to  it.     A  summary  the  estate  insolvent,  may  prove  the  debt 

and  comparatively  inexpensive  method  in    the    name    of  the  creditor,   see   17 

of   adjusting   and    determining    the  in-  Mass.  380;    Heard  v.  Drake,  4  Gray, 

debtedness    is    provided.     And   instead  514;    10  B.  Mon.  147. 

of  employing  commissioners,  some  stat-  '  Borer  v.  Chapman,  119  U.  S.  587. 

utes   direct  the  probate  judge  himself  ^  Littlefield  v.  Eaton,  74  Me.  516. 


§  44^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


CHAPTER   II. 

SPECIAL    ALLOWANCES   TO    WIDOWS    AND    MINOR   CHILDREN. 

§  447.  Wife's  Paraphernalia,  Separate  Property,  etc.,  do  not 
enter  into  Administration  of  Husband's  Estate.  —  The  surviving 

wife's  rigfhts  should  be  studied  in  connection  with  the  law  of 
husband  and  wife,  which  is  well  known  to  have  changed  its 
whole  scope  and  bearing  since  the  common  law  defined  the 
rules  of  coverture  centuries  ago.  What  have  been  termed 
the  widow's  parapJicrnalia,  or  the  suitable  ornaments  and 
wearing  apparel  of  a  married  woman,  remaining  at  the  time 
of  her  husband's  death,  undisposed  of  by  him,  exist  as  hers, 
by  exception  to  the  old  rule  that  all  her  chattels  became  her 
husband's,  while  all  his  remained  his  own.^  An  exception  of 
far  wider  consequence,  under  equity  decisions  and  the  recent 
married  woman's  legislation,  is  that  of  the  wife's  separate 
property.^ 

§  448.  Widow's  AlloTvance  under  Modern  Statutes.  —  A 
widow  may  have  rights,  by  way  of  distribution  or  dower,  or 
as  a  legatee  or  devisee,  in  the  estate  which  her  husband  left 
at  his  death.  And,  furthermore,  we  are  to  observe,  that  as  a 
claimant  for  the  immediate  support  of  herself  and  the  young 
children  of  her  deceased  spouse,  modern  legislation  deals 
liberally  with  her.  Let  us  here  examine  her  rights  in  this 
latter  aspect. 

The  statutes  relating  to  what  is  familiarly  known  as  the 
widow's  allowance  provide,  in  general  (though  with  variations 
of  language),  that  such  parts  of  the  personal  estate  of  a  per- 
son deceased  as  the  probate  court,  having  regard  to  all  the 

*  Schoul.  Hus.  &  Wife,  §  431;   Com.  minor   children   of  a  deceased   person 

Dig.    Baron    &    Feme,    Paraphernalia,  shall  belong  to  them  respectively.   Mass. 

Local  statutes  in  these  times  sometimes  Gen.  Stats,  c.  96,  §  4. 

provide    expressly   that  the    articles  of  "^  Schoul.  Hus.  &  Wife,  Part  V. 
apparel  and  ornament  of  the  widovv^  and 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  449 

circumstances,  may  allow  as  necessaries  to  his  widow,  for 
herself  and  family  under  her  care,  shall  not  be  taken  as  assets 
for  the  payment  of  debts,  legacies,  or  even  (to  follow  the 
expression  sometimes  inaptly  used)  charges  of  administration.^ 
The  intent  of  such  legislation  is  to  make  an  express  allow- 
ance from  the  husband's  estate  for  the  benefit  of  his  widow 
and  minor  children,  whenever  their  circumstances  require  it, 
treating  their  immediate  necessities  as  paramount  to  the 
claims  of  creditors.  It  is  to  be  strictly  considered  as  an 
allowance  out  of  the  decedent's  personal  property  alone,  and 
not  extending  to  real  estate  ;  ^  and,  in  general,  as  an  allowance 
to  be  made  whether  the  husband  and  father  died  testate  or 
intestate,^  and  a  temporary  provision  merely.'* 

§  449-  "WidoTAT's  Allov^ance  ;  ■whether  confined  to  Cases  of 
Distress.  —  To  relieve  immediate  distress  is  the  main  intent 
of  such  legislation  ;  to  provide  necessaries  for  a  widow  and 
young  orphans,  as  far  as  may  be,  until  the  estate  is  fully 
settled,  or  one  can  make  other  arrangements  for  support.^ 
It  is  not  intended  to  furnish  the  widow  with  a  capital  for 
business  purposes,  or  to  establish  a  fund  from  which  she  may 
derive  a  permanent  income.^  But  the  allowance,  though  evi- 
dently designed  for  temporary  relief,  is  not  confined  to  cases 
of  absolute  and  permanent  destitution  and  slender  estates  ; 

1  Mass.  Gen.  Stats,  c.  96,  §  5.  And  are  no  children,  and  a  legacy  has  been 
see  Strawn  v.  Strawn,  53  111.  263;  Sher-  left  to  the  widow.  Moore  v.  Moore,  48 
man  v.  Sherman,  21  Ohio  St.  631;  Mich.  271.  And  it  may  be  made  al- 
other  cases  infra;  Sawyer  v.  Sawyer,  though  the  husband  has  by  will  disposed 
28  Vt.  245.  of  all.     Baker   v.  Baker,  57  Wis.  382. 

2  Paine  v.  Paulk,  39  Me.  15;  Hale  v.  Under  the  Iowa  code  a  court  may  make 
Hale,  I  Gray,  523.  As  to  advice  by  an  allowance  or  set  off  specific  prop- 
the  representative,  see  75  N.  C.  47.  erty.      McReynold's    Estate,    61    Iowa, 

8  See,  however,  Mathes  v.  Bennett,  i  585. 

Fost.    189;    Iowa  code.     As  for  restrict-  The  widow  of  a  non-resident  cannot 

ing  to  the  amount  of  cash  in  hand,  see  claim  out  of  local   assets  although  she 

113  Penn.  St.  II.     The  sum  of  $1,000  comes  into  the  ancillary  jurisdiction  after 

out  of  an  estate  of  $12,000  is  excessive,  her  husband's  death.     97  N.  C.  112;  76 

58  N.   H.   44.      But    where  mortgaged  Ala.  521. 

realty  of  the  decedent  sold  for  less  than  *  Woodbury  v.  Woodbury,  58  N.  H. 

$200  above  the  mortgage  of  $100,  the  44. 

widow  may  have  the  rest  to  the  exclusion  *  HoUenbeck  v.  Pixley,  3  Gray,  521; 

of  a  tax  lien.     109  Penn.  St.  75.     An  Foster  v.  Foster,  36  N.  H.  437. 

allowance  may  be  made  although  there  ^  lb. 

553 


§  45°  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

for  a  widow  who,  on  a  final  division  of  the  estate,  is  likely  to 
receive  a  considerable  competence,  may  be  without  the  usual 
means  of  comfortable  livelihood  meanwhile ;  and  such  cases 
the  judge  appears  competent  to  relieve.  Indeed,  in  some 
States,  it  is  plainly  decided  that  even  a  rich  widow  may  claim 
the  allowance ;  ^  and  that  the  statute  provision  is  of  universal 
application,  the  discretion  of  the  court  extending  only  to  the 
amount  of  the  provision. ^  But,  according  to  the  better  opin- 
ion, an  allowance  may  be  refused  where  no  good  reason  is 
shown  for  granting  it.^ 

The  language  of  the  local  statute  is  of  consequence,  how- 
ever, in  determining  its  scope  and  purpose ;  and,  in  some 
States,  the  allowance  is  so  purely  for  "  present  support,"  that 
it  may  or  may  not  be  treated  as  part  of  the  widow's  share  in 
her  husband's  estate,  according  to  the  court's  discretion.* 
That  the  allowance  is  not  to  be  deemed,  in  any  sense,  as  the 
judge's  gift,  or  a  means  of  rectifying  any  apparent  injus- 
tice to  which  one  may  be  exposed  by  the  statute  of  distribu- 
tions or  the  testator's  will,  appears  certain.^ 

§  450.  Maintenance  for  a  Particular  Period  sometimes 
specified.  —  The  statutes  of  various  southern  States  provide 
explicitly  for  "a  year's  support,"  or  the  maintenance  of 
widow  and  children  for  one  year  out  of  the  deceased  hus- 
band's estate.^  Such  an  allowance  appears  to  be  properly 
claimed,  as  such  statutes  often  run,  by  any  widow  for  the 
period  specified,  regardless  of  her  other  means  of  support.'' 
But,  in  such  case,  the  property  actually  consumed  before 
the  application  for  support  should  be  taken  into  account ; 
and  where  the  widow  has  lived  on  her  deceased  husband's 
estate  for  a  year  after  his  decease,  using  the  property  at 
her  discretion,  she  is  entitled  to  no  further  allowance.^     In 

1  Strawn  v.  Strawn,  53  111.  263;  ^  Foster  v.  Foster,  36  N.  H.  437; 
Thompson  v.  Thompson,  51  Ala.  493.        Hollenbeck  v.  Pixley,  3  Gray,  525. 

2  Sawyer  v.  Sawyer,  28  Vt.  245.  ®  Cole  v.  Elfe,  23  Ga.  235 ;  61  Ga.  410; 
8  Hollenbeck  z/.  Pixley,  3  Gray,  524;      i    Swan,   441;     Rqcco    v.    Cicalla,    12 

Kersey  v.  Bailey,  52  Me.  199.  Heisk.  508;   Grant  v.  Hughes,  82  N.  C. 

*  Foster   v.   Foster,    36   N.   H.  437;     216,  697. 
Mathes  v.  Bennett,  I  Fost.  (N.  H.)  189.         ^  Wally  v.  Wally,  41  Miss.  657. 

8  Blassingame  v.  Rose,   34  Ga.  418; 

554 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  45 1 

lieu  of  the  year's  provision,  or  support,  a  sum  of  money  may 
sometimes  be  awarded.^ 

§  451.  Precedence  of  Widow^'s  Allovrance  over  other  Claims; 
•whether  independent  of  Distribution,  etc. ;  Effect  of  Decedent's 
Insolvency. —  The  statute  allowance  is  usually  accorded  pri- 
ority over  all  claims  of  general  creditors ;  it  is  sometimes 
preferred  even  to  the  expenses  of  administration  and  funeral  ;^ 
though,  in  practice,  a  probate  court  will  generally  reserve 
enough  for  these  prior  and  essential  charges.^  Judgments 
and  other  liens  are  in  some  instances  regarded  as  subordi- 
nate ;  nevertheless,  a  secured  creditor  is  not  to  be  thus 
deprived  of  rights  which  he  can  enforce  without  the  aid  of 
an  administrator  or  executor. 

As  a  rule,  this  immediate  allowance  is  quite  independent 
of  one's  prospective  distributive  share,  legacy,  or  provision 
under  a  will  ;^  but,  while  a  mere  advancement  would  by  no 
means  meet  all  necessitous  cases,  the  court,  in  some  States, 
may  at  discretion  treat  the  allowance  to  a  widow  as  on  such 
a  footing ;  ^  which,  however,  appears  contrary  to  the  general 
policy  of  such  legislation.^ 

According  to  local  statutes  as  to  this  allowance,  must  appear 
the  bearing  of  the  decedent's  insolvency.     In  some  States, 

36  Ga.   194.     But  delay  in  taking  out  empt  property  to  her  husband's  creditors 

administration  beyond  a  year  from  the  where  the  estate  was  solvent  in  fact,  her 

decedent's  death    does  not  necessarily  allowance  should  be  made  her.   65  Wis. 

exclude   the    allowances.     Rogers,    Ex  551. 

parte,  63  N.  C.  1 10.  ^  Mathes  v.  Bennett,  i  Fost.  (X.  H.) 

1  Nelson    v.    Smith,    12    Sm.   &    M.  189. 

(Miss.)  662.  ®  See  Davis  v.  Davis,  63  Ala.  293. 

2  Mass.  Gen.  Stats,  c.  96,  §  5;  Kings-  Statutes  do  not  always  give  the  wid- 
bury  V.  Wilmarth,  5  Allen,  144.  ow's  allowance  a  priority  over  charges 

8  Giddings  v.  Crosby,  24   Tex.  295;  and  expenses  of  administration,  funeral, 

Elfe  w.  Cole,  26  Ga.  197.  etc.     McCord  v.  McKinley,  92  111.   11. 

*  Meech  v.  Weston,  t,},  Vt.  561;  Fos-  And,  as  to  administration,  it  is  certain 
ter  V.  Fifield,  20  Pick.  67.  Such  allow-  that,  in  many  instances,  unless  adminis- 
ance  may  take  precedence  of  a  tax  lien,  tration  was  granted  and  its  expenses 
109  Penn.  St.  75.  Of  general  creditors  paid,  there  would  be  no  fund  available 
and  judgment  liens  :  but  as  to  other  liens  for  making  the  widow's  allowance  from, 
and  equities  she  takes  as  her  husband  Where  the  personal  estate  is  small,  how- 
held  it.  95  N.  C.  504.  The  widow  can-  ever,  it  may  be  awarded  to  the  widow, 
not  be  postponed  to  a  creditor's  claim  by  provided  there  is  real  estate  which  may 
either  court  or  administrator.  67  Iowa,  be  sold  for  the  funeral  expenses,  etc. 
1 10.     And  if  the  widow  surrenders  ex-  McCord  v.  McKinley,  supra. 

555 


§  451 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


paying  a  portion  of  the  assets  for  the  support  of  the  widow 
and  children,  when  the  estate  is  insolvent,  is  not  justified ; 
and,  certainly,  an  executor  or  administrator  could  not  do  so, 
at  his  own  discretion,  by  way  of  advancing  more  than  would 
be  theirs  on  a  final  settlement.^  On  the  other  hand,  in  States 
which  confide  the  amount  to  the  discretion  of  the  court,  and 
accord  to  this  allowance  an  express  precedence,  insolvency  is 
no  barrier ;  and  it  is  not  uncommon,  where  the  husband  has 
died  insolvent,  leaving  few  assets,  for  the  whole  of  the  per- 
sonal property  to  be  thus  awarded  to  the  widow  (less,  perhaps, 
the  necessary  preferred  charges),  whereby  is  afforded  an  ex- 
peditious means  of  settling  a  small  and  embarrassed  estate.^ 


1  Hicschler,  Re,  13  Iowa,  597. 

2  Buffum  V.  Sparhawk,  20  N.  H.  81; 
Brazer  v.  Dean,  15  Mass.  183;  Johnson 
V.  Corbett,  11  Paige,  265;  Hampson  v. 
Physick,  24  Ark.  562.  And  as  to  "  a 
year's  support,"  see  Elfe  v.  Cole,  26  Ga. 
197;  Nelson  v.  Smith,  12  Sm.  &  M.  662. 

The  nature  and  circumstances  of  this 
allowance  require  that  it  should  be 
promptly  sought.  Ordinarily,  the  appli- 
cation should  be  made  as  soon  as  the 
inventory  of  the  estate  is  returned,  and 
the  court  has  the  means  of  judging  how 
much  should  be  granted.  Kingman  v. 
Kingman,  11  Fost.  182.  And  it  should 
precede  the  full  administration  of  the 
assets.  The  petition  and  proceedings 
for  allowance  are  simple.  Notice  to 
the  administrator  or  executor,  as  one 
who  has  knowledge  of  the  actual  con- 
dition of  the  estate,  who  represents 
claimants,  and  must  pay  over  the  sum 
decreed,  seems  always  highly  proper; 
and  yet,  in  conformity  with  the  local 
statute,  an  ex  parte  proceeding  is  in 
some  States  clearly  sanctioned.  Morgan 
V.  Morgan,  36  Miss.  348;  cf.  Wright  v. 
Wright,  13  Allen,  207.  The  allowance 
should  be  moderate,  and  according  to 
the  fortune  of  the  deceased  and  the 
necessities  of  the  petitioner.  The 
amount  of  the  widow's  separate  prop- 
erty and  means,  the  circumstance  that 
she  is  accustomed  or  able  to  earn  her 
own  support  or  the  contrary,  the  num- 
ber and  respective  ages  of  her  children, 


—  all  these,  as  well  as  the  value  of  the 
estate,  and  the  prospective  distribution, 
are  facts  for  the  court  to  consider,  as 
material  to  the  case.  Adams  v.  Adams, 
10  Met.  170;  HoUenbeck  v.  Pixley,  3 
Gray,  525;  Kersey  v.  Bailey,  52  Me. 
198;  Duncan  v.  Eaton,  17  N.  H.  441. 
The  amount  suital)le  by  way  of  rea- 
sonable allowance  is  -decreed  accord- 
ingly at  the  judge's  discretion.  .Statute 
sometimes  fixes  the  allowance.  Claudel 
V.  Palao,  28  La.  Ann.  872. 

The  discretion  of  the  judge  of  pro- 
bate is  considered  a  legal  discretion,  to 
be  judiciously  exercised,  and  subject 
(except,  perhaps,  in  extreme  instances) 
to  the  revision  and  correction  of  the 
supreme  court.  Piper  v.  Piper,  34  N. 
H.  563;  Cummings  v.  Allen,  34  N.  H. 
194;  Kersey  v.  Bailey,  52  Me.  198. 
Some  statutes  give  a  permissive  right  to 
the  petitioner,  in  case  the  decree  of 
allowance  is  appealed  from,  to  receive 
the  sum  upon  furnishing  a  bond  with 
sureties  conditioned  to  repay  the  sum 
if  the  decree  is  reversed.  Mass.  Gen. 
Stats,  c.  94,  §§  9,  10. 

The  widow  may  have  a  second  al- 
lowance, provided  such  allowance  be 
just,  at  any  time  before  the  personal 
estate  is  exhausted.  Hale  v.  Hale,  i 
Gray,  518.  A  periodical  allowance 
may  be  diminished  by  the  judge  on 
good  cause,  but  not  retroactively.  Baker 
V.  Baker,  51  Wis.  538;    53  Iowa,  467. 

An  allowance,  as  it  is  held,  may  be 


556 


CHAP.   II.]  SPECIAL    ALLOWANXES.  §  453 

§  452.  Decree  of  Allowance,  etc.,  how  enforced.  —  The  allow- 
ance to  widow  and  children  being  duly  decreed,  the  executor 
or  administrator  in  charge  of  the  estate  should  make  payment 
accordingly,  regarding  the  statute  dignity  of  the  claim,  and 
charging  the  sum  in  his  account ;  otherwise,  the  claim  may 
be  enforced,  after  a  demand  and  refusal,  by  action  brought 
by  the  claimant  against  such  representative  ;  ^  who,  if  at  fault 
in  withholding  payment,  ought,  it  seems,  to  be  personally 
cast  for  the  costs.  Payment  or  delivery  having  been  made 
in  good  faith,  in  accordance  with  the  decree,  the  executor  or 
administrator  is  entitled  to  have  credit  for  the  same  in  his 
accounts.^  A  claim  against  the  decedent,  purchased  after 
property  has  vested  in  the  widow  by  a  decree,  cannot  be  set 
off  by  a  debtor  to  the  estate  against  the  widow's  special 
claim.3 

§453.  Widow's  Allowance,  how  barred.  —  Undue  delay  in 
presenting  the  claim  for  allowance  cannot  be  permitted,  so 
as  to  injure  those  whose  rights  have  become  fully  fixed,  and 
among  whom  a  disbursement  of  assets  has  properly  begun.* 
Misconduct  of  the  wife,  such  as  adultery  or  desertion,  is  also 
made  an  express  bar,^  and  might,  otherwise,  be  taken  into 
consideration  as  determining  her  necessities,  while  the  fact 
of  leaving  her  husband  with  apparent  justification  ought, 
certainly,  not  to  preclude  her  allowance.^  The  acceptance 
of   a  distributive  share  would  seem  to  be  inconsistent  with 


granted,  although  provision  was   made  value  of  her  services  to  her  husband,  and 

for  the  widow  by  her  husband's  will  in  the  like,  are  not  material  to  the  present 

lieu  of  dower,  and  accepted  by  her,  and  issue,  which  is  one  of  actual  and  present 

although  the  executor,  being  also  resid-  needs,  considering  the  actual  jiersonalty 

uary  legatee,  has  given  bond  as  such  to  left    to   supply    them.      Hollenbeck   v. 

pay  the  debts  and  legacies.     Williams  Pixley,  3  Gray,  525;    10  Met.  170. 

V.  Williams,  5  Gray,  24.     Nor  does  the  '  Drew   v.    Gordon,    13   Allen,   120; 

fact  that  the  wife  has  a  separate  estate  Godfrey  v.  Getchell,  46  Me.  587. 

prevent  the  allowance;  at  least  in  States  ^  Richardson  v.  Merrill,  32  Vt.  27. 

where   such    estate    constitutes   in    law  ^  Haugh  v.  Seabold,  15  Ind.  343. 

and  equity  no  fund  for  the  obligatory  "■  See  Dease  v.  Cooper,  40  Miss.  114; 

supjiort    of  wife    and    minor   children.  Kingman   v.   Kingman,    11    Fost.    182; 

Thompson  v.  Thompson,  51  Ala.  493;  cf  Miller  v.  Miller,  82  111.  463. 

Wally  V.  Wally,  41  Mis?.  657.  Questions  ^  Cook  v.  Sexton,  79  N.  C.  305. 

concerning  the   contribution    made    by  ^  Slack  v.  Slack,  123  Mass.  423.    See 

the  wife  to  the  marriage,  however,  the  31  La.  Ann.  854. 

557 


§  455  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

the  claim  for  allowance.^  Beneficial  provisions  under  a  will, 
which  the  widow  does  not  renounce,  are  held,  in  some 
instances,  to  exclude  her  from  claiming  the  allowance.^  But 
the  release  of  all  claims  upon  her  husband's  estate,  under  a 
marriage  contract,  is  held  no  bar  to  a  widow's  allowance.^ 
A  separation  deed,  followed  by  separation,  may  debar  or  a 
marriage  settlement.^ 

§  454.  Widow's  AUo-wance ;  Effect  of  her  Death  or  Remar- 
riage before  a  Grant.  —  So  temporary  in  its  nature  and  so 
personal  in  its  character  is  this  widow's  allowance,  that  where 
the  widow  dies  before  it  is  granted,  the  allowance  is  lost,  even 
though  proceedings  relative  to  the  grant  are  still  pending  ;  nor 
does  the  right  survive  or  go  to  her  personal  representative.^ 
The  effect  of  her  death,  after  a  decree  unappealed  from  has 
established  her  right,  absolutely  and  conclusively,  to  an 
allowance,  appears,  on  the  other  hand,  to  cause  this  right 
of  property  to  pass  to  her  personal  representatives.^  Re- 
marriage, too,  before  allowance,  is  held  to  debar  her. '^ 

§455.  Allowance  to  Minor  Children.  —  Legislation  such 
as  we  are  considering  not  only  provides,  however,  that  the 
allowance  to  the  widow  shall  be  for  herself  and  the  family 
under  her  care,  but,  in  some  States  makes  express  allowance 
to  the  minor  children,  in  case  there  is  no  widow.  Under 
the  Massachusetts  statute,  the  allowance  to  minor  children 
shall  not   exceed  fifty  dollars  for  each    child.^     Should   the 

1  So  the  acceptance  of  a  succession.  545.  But  see  Tierman  v.  Binns,  92 
Claudel  V.  Palao,  28  La.  Ann.  872.  Penn.  St.  248. 

2  Turner  v.  Turner,  30  Miss.  428.  *  As  to  litigation  on  such  a  point,  see 
But  the  widow's  appeal  from  the  pro-  Speidel's  Appeal,  107  Penn.  St.  18;  66 
bate  of  a  will  does  not  estop  her  from  Iowa,  79;    38  Ark.  261. 

claiming  her  allowance,  independently  ^  Adams    v.    Adams,    10    Met.    171  ; 

of  that  issue.     Meech  v.  Weston,  33  Vt.  Dunn,  Ex  parte,  63  N.  C.  137;    Tarbox 

561.     As   to   a  direction   in   one's   will  v.  Fisher,  50  Me.  236.     The  Ohio  rule 

that  his  family  be  provided  for,  etc.,  see  is  to  the  contrary.     Dorah  v.  Dorah,  4 

Reid  V.  Porter,  54  Mo.  265;  Riley  Ch.  Ohio  St.  292;   Bane  v.  Wick,    14  Ohio 

152.  St.  505. 

8  Blackington    v.    Blackington,     I  ID  ^  D^ew  f.  Gordon,  13  Allen,  1 20. 

Mass.  461.     And  see  Sheldon  v.  Bliss,  ^  Hamilton's  Estate,  66  Cal.  576. 

4  Seld.  31;    Phelps  v.   Phelps,  72  111.  «  Mass.  Gen.  Stats,  c.  96,  §  5.     And 

see  Lesher  v.  Wirth,  14  111.  39. 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  456 

widow's  death  precede  the  grant  of  an  allowance,  or  should 
there  be  no  widow,  an  application  on  behalf  of  the  minor 
children  of  the  decedent,  if  there  be  any,  may,  therefore,  be 
properly  entertained.  Statutes  authorizing  one  year's  sup- 
port likewise  give  the  children  the  right  to  apply  by  guar- 
dian for  the  provision,  on  the  death  of  the  widow.^  Where 
minor  children  do  not  live  with,  and  are  not  maintained  by, 
the  widow,  the  probate  court  may  sometimes  apportion  the 
provision  for  the  benefit  of  all  concerned. ^ 

§  456.  Specific  Articles  of  Personalty  allo'wed  Widow  and 
Children;  Exempt  Chattels,  etc.  — American  statutes  enumer- 
ate specific  articles  of  property,  in  connection  with,  or  as  a 
substitute  for,  the  money  allowance  to  widow  and  minor 
children.  Thus,  the  Massachusetts  act  excepts  from  assets 
of  the  deceased,  in  addition  to  this  allowance,  "such  provi- 
sions and  other  articles  as  are  necessary  for  the  reasonable 
sustenance  of  his  family,  and  the  use  of  his  house  and  the 
furniture  therein,  for  forty  days  after  his  death."  ^  Their 
own  articles  of  ornament  and  wearing  apparel  are  expressly 
confirmed  to  widow  and  minor  children  ;  *  and,  under  some 
codes,  the  widow  may  take  articles  of  personal  property,  at 
their  appraised  value,  to  a  stated  amount.^ 


1  Edwards  v.  McGee,  27  Miss.  92.  the  widow  may  claim  more,  and  such  as 

2  Womack   v.    Boyd,    31    Miss.  443.  she  needs  while  the  estate  is  being  set- 
Family  allowance  for  a  year  may  go  to  tied.     67  Cal.  349. 

minor  children  where  there  is  no  widow.  •^  Mass.  Gen.  Stats,  c.  96,  §  5.  And 
70  Ga.  733,  §  450.  But  "children"  see  Carter  v.  Hinkle,  13  Ala.  529; 
usually  means  "minor  children"  in  Graves  z/.  Graves,  10  B.  Mon.  41.  Ex- 
such  connection.  70  Ala.  381.  And  pressions  for  the  benefit  of  minor  chil- 
"  grandchildren  "  may  be  included.  35  dren  are  found  in  such  codes. 
La.  Ann.  371.  If  the  widow  dies,  her  *  Mass.  Gen.  Stats,  c.  96,  §  4.  See 
minor  children  may  have  a  year's  sup-  "paraphernalia,"  Schoul.  Hus.  «&  Wife, 
port  from  her  estate.  74  Ga.  795.  This  §  431 ;  supra,  §  447. 
allowance  should  be  made  on  liberal,  ^Hastings  v.  Myers,  21  Mo.  519; 
not  on  narrow  lines,  as  in  keeping  young  Bonds  v.  Allen,  25  Ga.  343  ;  Darden  v. 
children  at  school  or  college,  if  the  con-  Reese,  62  Ala.  311  ;  Leib  v.  Wilson,  51 
dition  of  the  estate  justifies  it.  Cheney  Ind.  550.  Such  permission  is  presum- 
V.  Cheney,  73  Ga.  66.  As  to  vesting  a  ably  to  take  as  on  account  of  her  share 
title  in  Georgia,  see  68  Ga.  66,  641.  A  in  the  estate  ;  but  the  local  statute 
"  family  allowance  "  being  exhausted  sometimes  extends  it  to  a  sort  of  special 
which  was  granted  for  a  limited  period,  gift  from  the  estate. 

559 


§456 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


In  various  States,  the  widow  is  entitled  to  all  the  property 
of  her  deceased  husband  which  is  exempt  by  law  from  sale 
on  execution.^  This  right  appears  to  exist  whether  the 
estate  was  testate  or  intestate,  solvent  or  insolvent,  and  so 
that  the  exempt  property  shall  not  go  to  the  executor  or 
administrator ;  but  the  widow's  claim  is  usually  confined  to 
exempt  property  of  her  late  husband  which  remained  on 
hand,  as  a  part  of  his  estate,  at  the  time  of  his  death. ^ 

All  such  property  going  directly  to  the  widow,  the  repre- 
sentative who  converts  it  is  a  wrong-doer,  and  makes  himself 
individually  liable  ;  ^  unless  he  is  required  to  take  a  tempo- 
rary charge  of  such  property,  as,  for  instance,  for  the  pur- 
pose of  making  his  inventory.^ 


1  Thompson  v.  Thompson,  5 1  Ala. 
493;  Taylor  v.  Taylor,  53  Ala.  135; 
Whitley  v.  Stevenson,  38  Miss.  113; 
Pride  v.  Watson,  7  Heisk.  232. 

^  Johnson  v.  Henry,  12  Heisk.  696. 

3  Carter  v.  Hinlde,  13  Ala.  529  ; 
Morris  v.  Morris,  9  Heisk.  814.  And 
see,  as  to  "  marital  portion  "  to  a  sur- 
viving spouse  in  necessitous  circum- 
stances, Newman,  Succession  of,  27 
La.  Ann.  593. 

As  to  what  the  code  gives  a  widow 
as  "  head  of  the  family,"  see  Schaffner 
V.  Grutzmacher,  6  Iowa,  137  ;  Paup.  v. 
Sylvester,  22  Iowa,  371. 

Statutes  recognize  the  right  to  receive 
money  in  lieu  of  exempt  or  other 
specific  articles.  Reavis,  Ex  parte,  50 
Ala.  210. 

*  Voelckner  v.  Hudson,  i  Sandf.  215. 
The  administrator  cannot  pursue  such 
property.  Wilmington  v.  Sutton,  6 
Iowa,  44.  The  selection  of  property  by 
the  widow  vests  her  with  the  title  at 
once.     73  Ala.  542. 

The  right  in  Missouri  is  absolute,  and 
requires  no  election  on  her  part  to  take 
the  property,  and  her  husband  cannot 
dispose  of  the  property  against  her.  77 
Mo.  162. 

A  widow  may  select  a  watch  under 
the  Maryland  code  among  other  articles. 
62  Md.  560. 

As  to  provisions  relating  to  a  widow 


who  is  "  housekeeper,"  and  "  head  of  a 
family,"  see  14  111.  39;  27  111.  129. 
And  as  to  "  implements  of  industry," 
see  72  Mo.  656.  Specific  articles  to  be 
set  apart  to  the  widow  will  be  found 
enumerated  in  certain  codes.  York  v. 
York,  38  111.  522  ;  Brigham  v.  Pjush,  33 
Barb.  596  ;  I  Saiulf.  (N.  Y.)  215. 
Pennsylvania  statutes  provide,  after  a 
peculiar  expression,  as  to  the  retention 
of  exempted  chattels  for  the  comfort  of 
the  widow  and  family,  and  as  to  prop- 
erty to  a  certain  value.  I  Ashm.  314; 
U.  S.  Dig.  1st  series,  Executors  &  Ad- 
ministrators, 2712;  91  Penn.  St.  34.  By 
Texas  statute,  allowance  should  be  made, 
and  exempt  property  set  apart,  by  the 
court  without  any  request.  Connell  v. 
Chandler,  11  Tex.  249. 

So  far  as  it  may  be  said  that  the  right 
to  specific  articles  under  a  statute  vests 
immediately  upon  the  death  of  the  hus- 
band, and  is  not  contingent  or  subject 
to  allotment  or  grant  under  the  court's 
direction,  the  right  to  these  articles,  on 
the  widow's  death,  without  receiving 
them,  devolves  upon  her  executor  or  ad- 
ministrator, who  may  pursue  the  prop- 
erty accordingly.  Hastings  v.  Myers, 
21  Mo.  519.  Such  articles  come  to  the 
wife,  not  through  the  husband's  will 
bestowing  all  of  his  estate  for  her  sup- 
port, but  by  virtue  of  the  statutes. 
Vedder  v.  Saxton,  46  Barb.  188. 


560 


CHAP.   II.] 


SPECIAL    ALLOWANCES. 


§457 


§  457.  Use  of  Dwelling  House;  Widow's  Quarantine. — The 
Magna  Charta  of  Henry  III.,  which  estabHshcd  and  defined 
the  rule  of  dower,  made  a  special  provision  that  the  widow 
might  tarry  forty  days  after  her  husband's  death  in  her  hus- 
band's house.^  This  latter  privilege  has  since  been  known 
as  the  widow's  quarantine,  a  right  preliminary  to  assigning 
her  dower,  and  has  been  expressly  recognized  by  statute  in 
some  of  the  United  States,  apart  from  its  existence  by  force 
of  the  common  law  alone  ;2  our  legislation  tending,  more- 
over, to  afford  the  same  shelter  to  the  minor  children,  and  to 
extend  the  privilege  to  the  use  of  the  furniture  therein,  and 
the  consumption  of  provisions  and  articles  necessary  to  sus- 
tenance.^ In  Ohio,  it  is  held  that  the  widow's  statute  right 
is  not  restricted  to  a  personal  continuance  in  the  house,  and 
that  she  may  rent  or  occupy  during  the  statute  period,  as 
may  best  promote  her  comfort.'*  The  statute  period  in  vari- 
ous States  lasts  until  dower  is  assigned  to  the  widow." 


1  2  Bl.  Com.  135. 

2  Mass.  Geii.  Stats,  c.  96,  §§  4,  5; 
35  Ala.  328;  Whaley  v.  Whaley,  50 
Mo.  577;  Craige  v.  Morris,  25  N.  J.  Eq. 
467;  Calhoun  v.  Calhoun,  58  Ga.  247; 
Young  V.  Estes,  59  Me.  441 ;  Doane  v. 
Walker,  loi  111.  628;    11  Paige,  265. 

^  Mass.  Gen.  Stats,  c.  96,  §§  4,  5. 

■*  Conger  v.  Atvvood,  28  Ohio  St.  134. 
And  if  the  executor  or  administrator,  in 
disregard  of  the  widow's  right,  rents  the 
mansion  house,  she  is  entitled  to  recover 
the  rent  received  by  him  during  the 
statute  period  fixed  for  her  enjoyment 
of  the  premises.  lb.  But,  in  Massa- 
chusetts, absence  of  the  wife  from  home 
deprives  her  of  the  quarantine.  Fisk 
V.  Cushman,  6  Cush.  20.  In  Indiana  a 
widow  has  the  right  to  crops  planted 
and  harvested  within  the  year.  81  Ind. 
292;  Hoover  v.  Agnew,  91  Ind.  370. 
And  see  as  to  growing  crops,  39  N.  J. 
Eq.  506  ;  §  307. 

The  widow  in  possession  under  the 
New  Jersey  statute  giving  her  the  right 
to  hold  her  husband's  homestead  until 
dower  is  assigned  is  not  like  a  tenant  for 
life,  and  she  is  not  bound  to  keep  down 


interest,  pay  taxes,  or  make  necessary 
annual  repairs.  Spinning  v.  Spinning, 
41  N.  J.  Eq.  427;  40  N.  J.  Eq.  30.  If 
she  receives  rent  she  should  account  for 
it,  and  is  credited  for  taxes  and  repairs. 
39  N.  J.  Eq.  506. 

The  lien  of  a  mortgage  on  land  ap- 
pears not  to  be  affected  under  such 
statutes.  Kaufifman's  Appeal,  112  Penn. 
St.  645.  As  to  acts  of  the  widow,  like 
selling  timber  and  building  a  new  house. 
See  27  W.  Va.  750  ;  72  Ga.  665. 

A  widow  who  has  elected  against 
such  will  is  debarred  from  attacking  in 
equity  chattel  transfers  made  in  her 
husband's  lifetime.      143  Mass.  340. 

Whether  dower  can  be  claimed  in 
addition  to  what  is  provided  by  will  for 
the  widow,  see  (local  statute)  144  Mass. 
564;  Konvalinka  v.  Schlegel,  104  N.  Y. 
125. 

The  removal  of  the  children  by  their 
guardian  does  not  affect  the  widow's 
right  to  occupy.  Zoellner  v.  Zoellncr, 
53  Mich.  620. 

^  Davenport  v.  Devenaux,  45  Ark. 
341- 


561 


§  457  ^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  4S7  (H.  "Widow's  Election  to  take  against  her  Husband's 
Will.  —  Our  local  statutes  enlarge  upon  the  old  doctrine  of 
the  widow's  dower  (which  might  not  be  absolutely  willed 
away  from  her  by  her  husband)  by  allowing  the  widow  to 
elect  to  take  under  or  against  her  husband's  will ;  and  what 
she  shall  take  in  the  latter  alternative  is  defined  by  the  same 
local  statute.^  She  must  make  her  election  within  a  stated 
time  —  such  as  a  year  or  less  —  or  she  shall  be  deemed  to 
have  elected  to  take  as  the  will  provides,  and,  in  general,  lapse 
of  time,  her  conduct,  negative  as  well  as  positive,  may  properly 
debar  her  from  electing.^  But  the  widow  is  not  bound  by 
her  election  made  in  ignorance  of  the  facts  which  should 
influence  it.^ 

1  Mathews  v.  Mathews,  141  Mass.  As  to  her  election  of  a  homestead  in 
511;  39  Hun,  252;  Brokaw  z^.  Brokaw,  lands,  see  Davidson  v.  Davis,  86  Mo. 
41    N.  J.   Eq.   304.     Dissent  from  the     440. 

will  is  not  necessary  for   securing  the  Where  a  widow  is  of  unsound  mind, 

statutory  exemption.      Supra,  §    456;  the  court  in  her  interest  may  elect  for 

73  Ala.  578.  her.     Penhallow  v.  Kimball,  61  N.  H. 

2  Hovey  v.  Hovey,  61  N.  H.  599.  596;  Van  Steenwyck  z^.^  Washburn,  59 
The  widow  may  thus  elect  to  take  Wis.  483.  As  to  recalling  assent,  and 
dower  rather  than  the  statute  life-interest  then  electing  against  the  will,  see  97 
in  one-half  the  estate,  real  and  personal.  N.  C.  236. 

Mathews  v.  Mathews,  supra.  ^  Elbert  v.  O'Neil,  102  Penn.  St.  302. 

562 


CHAP.  III.]  LEGACIES.  §  459 


CHAPTER   III. 

LEGACIES,    THEIR    NATURE    AND    INCIDENTS. 

§   458.    This   Subject  a  Branch  of  the  Law  of  Wills.  —  The 

subject  of  legacies  is,  properly  speaking,  a  branch  of  the  law 
of  wills  ;  and,  to  general  treatises  on  wills,  the  reader  is  re- 
ferred for  a  detailed  treatment  of  the  subject.  Many  intri- 
cate problems  arise  in  the  equity  courts  under  this  head, 
which  an  executor  or  administrator,  as  such,  may  never  be 
required  to  solve ;  but,  where  embarrassment  arises  in  the 
interpretation  of  a  testamentary  trust,  they  who  administer 
that  trust,  whether  trustees  or  executors,  must  seek  compe- 
tent legal  advice.  The  plain  directions  of  a  well-drawn  and 
simple  will  are  to  be  pursued  according  to  the  testator's  mani- 
fest wishes,  and  after  a  plain  and  common-sense  fashion  ;  and 
even  the  close  and  subtle  analysis  which  acute  judicial  minds 
have  given  to  the  most  complicated  of  testamentary  pro- 
visions, proceeds,  after  all,  upon  the  common-sense  principle 
that  the  testator's  just  intentions  should,  if  possible,  prevail. 
It  may  be  advantageous,  however,  to  set  before  the  reader 
the  nature  of  legacies  and  their  chief  incidents  ;  for,  to  this 
extent,  at  least,  every  executor  should  make  himself  familiar 
with  this  interesting  topic  of  our  jurisprudence. 

§  459.  Legacy  defined;  Executor  under  a  Will  should  pay 
or  deliver.  —  A  legacy  is  a  gift  or  disposition  in  one's  favor 
by  a  last  will.  We  commonly  apply  the  word  to  money  or 
other  chattel  gifts,  though  a  broader  reference  is  not  inap- 
propriate ;  "bequest  "  being  the  more  precise  term  for  a  tes- 
tamentary gift  of  personalty.2     Next  to  seeing  that  all  just 

1  See  I  Jarm.  Wills;  2  Schoul.  Wills  given  or  left,  either  by  a  testator  in  his 
(in  preparation).  testament   wherein  an  executor   is   ap- 

2  A  legacy  is  defined  by  Godolphin  pointed,  to  be  paid  or  performed  by  his 
as   "  some   particular   thing    or   things  executor,  or  by  an  intestate  in  a  codicil 


460 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


debts  and  charges  are  amply  provided  for,  one  who  adminis- 
ters under  a  will  should  attend  to  the  payment  or  delivery  of 
legacies  in  accordance  with  law  and  the  last  wishes  of  his 
testator. 

While,  by  "legacy,"  our  law  signifies  a  testamentary  dispo- 
sition ;  and  every  testamentary  disposition  is  admitted  to  be 
ambulatory,  and  revocable,  by  the  testator  during  the  testa- 
tor's natural  life ;  it  does  not  follow  that  a  legacy  is  neces- 
sarily devoid  of  consideration.^ 

§   460.    Description  of  the  Legatee,  and  -who  may  be  such.  — 

Various  classes  of  persons  have  been  treated  as  disqualified 
from  receiving  legacies  under  English  statutes ;  the  list  being 
quite  similar  to  that  which  pertains  to  the  office  of  executor.^ 
Prohibited  classes,  however,  must  be  defined  by  law;^  for 
every  person  is  capable  of  taking  a  legacy  as  a  rule,  except- 


or last  will,  wherein  no  executor  is  ap- 
pointed, to  be  paid  or  performed  by  an 
administrator."  Godolph.  pt.  3,  c.  i, 
§  I,  cited  Wms.  Exrs.  105 1. 

1  3  Abb.  App.  411. 

2  Supra,  §  35. 

^  The  fundamental  terms  of  its  creation 
are,  as  to  every  corporation,  properly 
resorted  to  for  determining  its  legal  ca- 
pacity to  take,  as  legatee  or  devisee;  the 
main  difficulty  being  to  adjust  the  weight 
of  presumptions  properly  where  those 
terms  have  not  been  clearly  expressed. 
It  is  not  essential  that  the  corporate  or- 
ganization be  complete  or  final  when 
the  testamentary  provision  takes  effect; 
but  associations  clearly  identified,  may, 
like  two  or  more  persons,  stand  entitled 
to  a  bequest;  and  such  association  may 
procure  afterwards  an  act  of  incorpora- 
tion from  the  legislature  in  confirmation 
of  its  right.  Nye  v.  Bartlett,  4  Met. 
378;  Zimmerman  v.  Anders,  6  W.,  &  S. 
218;  England  v.  Prince  George's  Vestry, 
53  Md.  466.  So,  too,  a  corporation 
named  as  legatee  or  devisee  not  unfre- 
quently  resorts  to  the  legislature,  after 
the  death  of  the  testator,  but  before  the 
money  is  payable,  to  procure  such 
amendment  of  its  charter  as  may  clearly 


remove  all  restraint  upon  its  capacity  to 
take  the  benefits  of  the  will  in  question. 
See  Wms.  Exrs.  1052,- Perkins's  note; 
4  Dem.  271.  A  corporation's  right  to 
take  by  will  is  subject  to  the  general 
laws  of  the  State  passed  after  the  incor- 
poration. Kerr  v.  Dougherty,  79  N.  Y. 
327.  And  see  England  v.  Parish  Vestry, 
53  Md.  466. 

Corporations,  public  or  private,  are 
not  so  readily  presumed  capable  of  tak- 
ing lands  under  a  will  as  personal  prop- 
erty; the  rule  of  policy  is  different  in 
the  two  instances,  and  the  law  of  situs 
prevails  as  to  land.  It  is  held,  in  con- 
struction of  the  New  York  statute,  that 
a  devise  of  lands  in  New  York  to  the 
government  of  the  United  States  is  void. 
United  States  v.  Fox,  94  U.  S.  Supr. 
315;  Fox,  Matter  of,  52  N.  Y.  530.  But 
the  bequest  to  the  United  States,  whence 
was  derived  the  Smithsonian  Institution, 
was  sustained  in  the  English  chancery 
courts,  this  being  a  bequest  of  personal 
property.  The  New  York  statute  pro- 
vides that  a  devise  of  lands  in  that  State 
can  only  be  made  to  natural  persons, 
and  to  such  corporations  as  are  created 
under  the  laws  of  that  State,  and  are 
authorized  to  take  by  devise. 


564 


CHAF.  III.] 


LEGACIES. 


§461 


ing  such  as  are  thus  expressly  forbidden.^  Even  an  unl)()rn 
child  may  by  proper  designation  under  the  will  be  made  a 
legatee.^ 

§  461.  Subject-Matter  of  Legacies  ;  Specific  distinguished  from 
General  Legacies. — -All  legacies  are  c\\.\\cr  gourai  or  specific. 
A  general  legacy  is  one  which  does  not  necessitate  deliver- 
ing any  particular  thing  or  paying  money  out  of  any  particu- 
lar portion  of  the  estate.  But  a  specific  legacy  is  the  converse 
of  this  ;  or  where  a  particular  thing  must  be  delivered,  accord- 
ing to  the  terms  of  the  bequest,  or  money  paid  out  of  some 
particular  portion  of  the  estate.^ 

Thus,  if  a  testator  bequeaths  to  A.  a  horse  or  a  gold  ring, 
this  indefinite  expression  constitutes  a  general  legacy ;  for 
we  may  infer  that  the  executor  is  left  free  to  procure  some- 
thing which  shall  answer  that  description  out  of  the  funds  in 
his   hands,  provided  none  be  left  at  the  testator's  decease. 


^  I  Roper  Legacies,  28;  Wms.  Exrs. 
7th  ed.  1052.  Among  persons  formerly 
disqualified  at  English  law  were  those 
who  denied  the  Scriptures,  traitors,  and 
artificers  going  abroad.  Such  disquali- 
fications have  no  application  to  the 
United  States,  and  the  modern  sense 
condemns  them. 

In  England,  it  was  decided  (2  Stra. 
1253)  that  a  subscribing  witness,  who 
derived  any  legacy  under  the  will  for 
himself  or  his  wife,  was  thereby  rendered 
incompetent  by  reason  of  interest,  and 
that  the  will  must  consequently  fail 
unless  there  appeared  the  requisite 
number  of  witnesses  without  him. 
Statute  25  Geo.  II.  c.  6,  however,  pre- 
served the  competency  of  the  subscrib- 
ing witness  by  declaring  his  legacy 
void;  and  similar  acts  have  been  passed 
in  most  American  States.  Wms.  Exrs. 
1053;  Schoul.  Wills,  §357.  See  also  Stat. 
I  Vict.  c.  26,  §  15. 

As  to  aliens,  infants,  insane  persons 
and  married  women,  modern  law  and 
practice  favors  their  right  to  become 
legatees,  i  Jarm.  Wills,  3d  Eng.  ed. 
70;   Wms.  Exrs.  1054. 


2  Chambers  v.  Shaw,  52  Mich.  18; 
57  Mich.  265.  A  devise  to  grandchil- 
dren, the  immediate  issue  of  persons  in 
being  at  the  time  of  a  will  is  valid. 
McArthur  v.  Scott,  113  U.  S  340.  And 
see  §  465.  But  in  Connecticut  and  Xew 
York  a  devise  to  persons  who  may  not 
be  in  being  at  the  testator's  death,  and 
who  may  not  be  the  immediate  issue  of 
persons  then  in  being,  is  pronounced 
void.  Wheeler  v.  Fellowes,  52  Conn. 
238. 

8  I  Roper  Legacies,  170;  Wms.  Exrs. 
1 158.  "A  specific  legacy,"  says  Lang- 
dale,  M.  R.,  "  is  something  distinguished 
from  the  rest  of  the  testator's  estate; 
and  it  is  sufficient  if  it  can  be  specified 
and  distinguished  from  the  rest  of  the 
testator's  estate  at  the  time  of  his  de- 
cease." 3  Beav.  342.  There  is  an  in- 
termediate sort  of  legacy  known  as  the 
"  demonstrative  legacv,"  according  to 
writers  on  the  law  of  Wills.  Wms.  Exrs. 
1 160;  4  Ves.  555.  But  the  two  main 
classes  are  as  stated  above;  while  it  is 
to  be  remembered  that  their  several 
incidents  are  variable  according  to  a 
testator's  declared  wishes. 


565 


§   4^1  EXECUTORS    AND    ADMINISTRATORS.  [PART  V, 

But,  if  the  bequest  is  expressed,  "my  roan  horse,"  "the  gold 
ring  which  C.  D.  gave  me,"  or  (with  reference,  not  to  a  pres- 
ent possession,  but  possession  at  the  time  of  one's  decease) 
"  whatever  horses  shall  be  in  my  stable,"  or  "all  the  books 
which  may  be  in  my  library,"  or  "all  the  furniture  which 
shall  be  contained  in  my  dwelling-house,"  this  legacy  is  a 
specific  one.^  Or,  to  proceed  with  the  distinction,  should  a 
testator  bequeath  $10,000  in  the  public  funds,  or  $10,000  in 
first-class  railroad  bonds,  or  simply  $10,000,  the  legacy  would 
be  general;  while,  on  the  other  hand,  the  bequest  of  $10,000 
"of  my  stocks  in  the  public  funds,"  or  "of  my  railroad 
bonds,"  answering  such  a  description,  or  of  "  $1,000  out  of 
my  savings-bank  deposit  in  B.,"  it  will  be  held  specific.  To 
the  latter  class  belongs  a  bequest  of  all  the  stock  in  the 
public  funds,  all  the  first-class  railroad  bonds,  or  all  the  sav- 
ings-bank deposits  to  which  the  testator  may  be  entitled  at 
the  time  of  his  death ;  and  so,  too,  with  any  designated 
portion  thereof.^  A  specific  legacy  may  be  given  under  a 
will,  with  the  substitution  besides  of  a  general  pecuniary 
legacy  in  case  of  its  failure,  to  be  satisfied  in  a  specific  man- 
ner.^ The  balance  of  a  partnership  settlement  not  drawn 
out  of  the  concern,  or  the  good-will  of  a  business,  may  be 
specifically  bequeathed,  in  whole  or  in  part ;  *  and  so  may  a 
debt  or  claim  in  favor  of  the  estate  ;  ^  and  insolvency  of  the 
concern  or  of  the  debtor  renders  the  legacy  worthless. 

It  would  be  observed,  however,  that  no  direction    out  of 
what  fund  the  legacy  shall  be  raised  will  render  that  legacy 


1  lb. ;  Fontaine  v.  Tyler,  9  Price,  security.  Lawson  z/.  Stitch,  i  Atk.  507; 
94.    See  also  §  381.  Perkins  v.  Mathes,  49  N.  H.  107. 

2  Bothamley  v.  Sherson,  L.  R.  20  Eq.  ^  P'ontaine  v.  Tyler,  9  Price,  94. 
304;  Wms.  Exrs.  1162,  and  Perkins's  There  may  be  a  bequest  of  shares  in  the 
note;  Ludlam's  Estate,  13  Penn.  St.  capital  stock  of  a  joint  stock  company, 
189;  Johnson  v.  Gross,  128  Mass.  433;  although  the  testator  held  stocks  of  the 
I  Roper  Leg.  17O;  Fontaine  v.  Tyler,  denomination  in  excess  of  the  Ijequest. 
supra;  Herring  z/.  Whittam,  2  Sim.  493;  Norris  v.  Thomson,  2  McCarter  (N.  J.) 
Foote,  Appellant,  22  Pick.  299.      Spe-  493. 

cificbequestsof  money  are  not  frequent;         *  Ellis  v.  Walker,  Amb.  309;    Fryer 

but  such  a  bequest  may  be  made  as  out  v.  Ward,  31  Beav.  602. 

of  a  certain  place  of  deposit,  or  from  a         ^2  Del.  Ch.  200 ;  Farnum  v.  Bascom, 

fund  placed  in  a  certain  person's  hands,  122  Mass.  282. 

or  of  money  arising  out  of  a  particular 

566 


CHAP.   III.]  LEGACIES.  §  462 

specific,  unless  the  clear  intent  was  to  transfer  all  or  a  part 
of  the  same  identical  fund.^  Nor  will  a  legacy  be  rendered 
specific,  by  directions  incidental  to  a  general  bequest ;  such 
as  a  certain  sum  of  money  to  be  laid  out  in  mourning  rings ; 
or  ;^  1,000  to  recompense  the  executor,  or  for  charity,  or  to  be 
invested  in  a  prescribed  class  of  securities,  or  payable  in 
cash.^  A  reference,  on  the  other  hand,  to  the  fact  of  one's 
death  for  ascertaining  his  legacy  —  as  in  the  bequest  of  "all 
the  horses  which  I  may  have  in  my  stable  at  the  time  of  my 
death  "  —  does  not  render  the  gift  other  than  specific.^ 

One  important  consequence  of  this  distinction  between 
general  and  specific  is,  that,  should  the  assets  prove  deficient, 
general  legacies  must  abate,  while  a  specific  legacy  does  not; 
and,  on  the  other  hand,  should  the  specific  legacy  fail,  or 
come  short,  for  want  of  the  identical  things  described,  the 
legatee  can  claim  no  satisfaction  out  of  the  general  personal 
estate.*  In  some  instances,  therefore,  the  specific  legatee  is 
the  better  off,  and  in  others  the  worse.  Since,  however, 
specific  bequests,  on  the  whole,  interfere  with  a  just  and 
uniform  settlement  of  an  estate  as  one  whole,  courts  of  equity 
lean  against  pronouncing  legacies  specific  in  doubtful  cases.^ 
Nevertheless,  testamentary  intention  shall  prevail,  if  duly 
expressed ;  and  so  clearly  separable  in  sense  is  a  specific 
from  a  general  legacy,  that  even  though  the  testator  should 
expressly  provide  against  the  ademption  of  a  legacy  specifi- 
cally identified  in  his  will,  such  legacy  is  not  thereby  rendered 
a  general  one,  and  denuded  of  its  other  peculiar  incidents.^ 

§  462.  Whether  a  Residuary  Bequest  can  be  deemed  Specific. 
—  The  bequest  of  all  one's  personal  estate,  or  the  devise  and 
bequest  of  all  the  residue,  both  personal  and  real,  cannot  be 
treated  as  specific ;  but  such  a  disposition,  from  its  own  terms, 
is  general  and  residuary,  and  subject  to  the  usual  payment  of 

*  2  Redf.  Wills,  135.  8  Bothamley  z'.  Sherson,  L.  R.  20  Eq. 

2  lb.;    Wms.  Exrs.  1162;   Richards  z'.  309, /^-r  Jessel,  M.  R. 

Richards,  9  Price,  226;  Lawsonz'.  Stitch,  *  See  post  as   to   the   ademption    of 

I  Atk.  507;  Edwards  z'.  Hall,  11  Hare,  legacies;    Wms.  Exrs.  1159. 

23;    Apreece  v.  Apreece,   i  Ves.  &  B.  ^  See    Lord    Chancellor   in    Ellis    v. 

364.  Walker.  Amb.  309;   Wms.  Exrs.  1 160. 

6  2  Coll.  435. 
567 


§  4^3  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

debts  and  legacies.^  Nor  is  a  general  residuary  clause  to  be 
Otherwise  construed,  merely  because  some  of  the  particulars 
of  which  it  shall  consist  are  enumerated  in  the  will.^  But 
there  may  be  a  specific  bequest  of  all  one's  estate  in  a  par- 
ticular locality  ;  ^  so,  too,  the  bequest  of  what  shall  remain  of 
a  specific  and  identical  thing  or  fund,  after  other  legacies 
enumerated  shall  have  come  out  of  it,  or  specified  incum- 
brances are  removed,  may  be  specific,  so  long  as  the  directions 
be  capable  of  fulfilment  without  destroying  the  identity  of 
the  thing  or  fund  itself.* 

§  463.  Bequests  for  Illegal  and  Immoral  Purposes  void;  Super- 
stitious Uses,  etc.  —  A  bequest  to  further  and  carry  into  effect 
any  illegal  purpose,  which  the  law  regards  as  subversive  of 
sound  policy  or  good  morals,  and  destructive  to  the  funda- 
mental institutions  of  society  and  the  civil  government, 
whether  by  disseminating  such  writings  or  otherwise,  will, 
on  general  principle,  be  held  void  ;  and  the  executor  is  not 
justified  in  paying  it.^  Men's  ideas  as  to  civil  polity  or  follies 
of  belief  are  by  no  means  immutable,  however. 

Whenever  a  charitable  intent  appears  on  the  face  of  the 
will,  but  the  terms  used  are  broad  enough  to  allow  of  applying 
the  fund  either  in  a  lawful  or  unlawful  manner,  the  gift  will 
be  supported,  and  its  application  restrained  within  the  bounds 
of  law.^  And,  where  some  bequests,  in  a  duly  probated  will, 
are  invalid,  and  must  fail,  the  valid  provisions  should  never- 
theless be  executed.' 

1  See  Wms.  Exrs.  1 1 72-1 177;  Fairer  vance  of  religious  toleration.  See,  in 
V.  Park,  L.  R.  3  Ch.  D.  309.  detail,  Wins.  Exrs.   1055.     A  legacy  by 

2  Taylor  v.  Taylor,  4  Hare,  628.  a   Roman  Catholic  for  masses  for  the 

3  Nisbett  V.  Murray,  5  Yes.  150;  2  repose  of  his  soul,  etc.,  is  frequently 
Vern.  688;   Wms.  Exrs.  1172.  pronounced  lawful  at  this  day.    2  Dem. 

*  lb.  87;  Schouler,  Petitioner,  134  Mass.  426. 

5  2  Beav.   151;    2  My.  &  K.  697;    I  But  the  older  cases,  and  especially  the 

Salk.    162;   Habeshon  v.  Vardon,  7  E.  English   ones,    condemn   such  gifts  as 

L.  &  Eq.  228.  for  superstitious  uses.     West  v.  Shuttle- 

fi  Gray,  J.,  in  Jackson  v.  Phillips,   14  worth,  2  My.  &  K.  684.     Legacies  for 

Allen,  556.  circulating  the  religious  writings  of  Jews 

^  Bent's  Appeal,  38  Conn.  26.  and  dissenters,  or  for  the  benefit  of  their 

As  to  bequests  for  "  superstitious  churches  and  ministers,  have  been  an- 
uses," so  called,  the  policy  of  our  law  nulled  in  former  centuries,  which  would 
has  greatly  changed  in  the  course  of  not  be  in  the  present  era  of  enlighten- 
two  centuries,  consistently  with  the  ad-  ment  and  toleration. 

568 


CHAP.  III.]  LEGACIES.  §  464 

§  464.  Bequests  to  Charitable  Uses ;  Statute  of  43  Elizabeth, 
c.  4. —  Gifts  to  charitable  uses  had  their  origin  in  the  Chris- 
tian dispensation,  and  are  found  regulated  by  the  Justinian 
code.^  Our  English  law  on  this  subject  is  controlled  by  the 
Stat.  43  Eliz.  c.  4.2  Since  this  enactment,  English  courts  of 
equity  have  treated  charitable  bequests  as  properly  restricted 
to  the  purposes  therein  enumerated,  and  to  such,  besides,  as 
by  analogy  may  be  deemed  within  its  spirit  or  intendment. 
"  Charitable  use  "  is  a  term  not  easily  defined  ;  nor  does  the 
statute  of  43  Eliz.  define,  but  rather  illustrates  by  instances 
such  as  might  vary  from  age  to  age.  Lord  Camden's  defini- 
tion, often  quoted,  that  a  gift  to  charity  is  "a  gift  to  a  general 
public  use,  which  extends  to  the  poor  as  well  as  to  the  rich,"^ 
seems  to  touch  the  vital  point ;  namely,  that  the  private 
benefaction  should  be  well  designed  to  promote  some  public 
object  of  utility.  Where  such  is  the  case,  the  disposition  of 
English  chancery  has  constantly  been  to  bring  the  bequest 
by  analogy  within  the  purview  of  the  statute,  even  though 
literal  interpretation  might  have  excluded  it. 

In  this  liberal  sense,  gifts  to  charitable  uses  are  likewise 
sustained  in  all  or  most  of  the  American  States ;  our  equity 
courts  resting  their  jurisdiction  upon  this  statute,  as  part  of 
the  law  of  England  which  the  first  settlers  brought  over  with 
them ;  or  else  deriving  it  from  that  earlier  common  law 
founded  in  the  precepts  of  the  Christian  religion,  and  the 
divine  injunction  that  love  of  God  be  manifested  in  the  love 
of  our  fellow-men,  —  which  such  enactments  serve  only  to 
explain  and  apply.^ 

^  Code  Just.  I.  3.  supportation  and  help  of  young  trades- 
2  I  Jarm.  (ed.  1861),  192.  This  stat-  men,  handicraftsmen,  and  persons  de- 
ute  specifies  the  following  gifts  as  chari-  caved;  for  the  relief  or  redemption  of 
table:  For  the  relief  of  aged,  impotent,  prisoners  or  captives;  for  the  aid  or 
and  poor  people;  for  the  maintenance  of  ease  of  poor  inhabitants;  and  concern- 
sick  and  maimed  soldiers  and  mariners;  ing  payment  of  fifteens,  setting  out  of 
for  schools  of  learning,  free  schools  and  soldiers  and  other  taxes, 
scholars  in  universities;  for  the  repair  ^  Jones  ?'.  Williams,  .Amb.  651.  Some- 
ot  bridges,  ports,  havens,  causeways,  times  incorrectly  ascribed  to  Lord  Hard- 
churches,  sea-banks,  and  highways;  wicke,  the  reporter  failing  to  designate 
for  the  education  and  preferment  of  clearly  the  individual, 
orphans;  for  the  relief,  stock,  or  main-  ■•  2  Story  Eq.  Jur.  §§  1155-116J.;  2 
tenance  for  houses  of  correction;  for  Kent  Com.  287,  288;  Burbank  ?■.  Whit- 
the  marriages  of  poor  maids;    for  the  ney,  24  Pick.  146;   Drury  v.  Natick,  10 

569 


§465 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


The  definiteness  or  indefiniteness  of  these  charitable  trusts 
is  sometimes  an  important  element  in  determining  the  validity 
of  such  gifts ;  as  to  whether  the  testator  has  given  for  some 
charity  or  is  rather  leaving  his  trustees  to  give  or  not,  accord- 
ing to  their  own  inclination.  But  our  courts  are  not  disposed 
to  let  a  good  public  object  fail  if  they  can  help  it,  where  the 
testator's  intention  may  be  discovered  and  he  has  not  con- 
fided too  great  discretion  to  those  selected  to  carry  out  his 
wishes.^ 

§  465.  Bequest  void  for  Uncertainty  ;  or  Tvhere  Principal  or 
Income  is  locked  up  too  long. —  There  may  be  bequests  void 
for  uncertainty.^  So  may  the  bequest  fail  when  given  to 
remain  in  bulk  for  some  remote  unborn  generation,  in  viola- 
tion of  the  rule  against  perpetuities.^     Nor  should  income  be 


Allen,  177;  Wms.  Exrs.  1069,  1070,  and 
Perkins's  notes.  In  Jackson  v.  Phillips, 
14  Allen,  556,  Gray,  J.,  quotes  approv- 
ingly the  language  used  by  Mr.  Binney 
in  arguing  the  Girard  Will  Case,  41, 
that  a  charitable  or  pious  gift  is  "  what- 
ever is  given  for  the  love  of  God,  or  for 
the  love  of  your  neighbor,  in  the  catho- 
lic and  universal  sense  —  given  from 
these  motives  and  to  these  ends  —  free 
from  the  stain  or  taint  of  every  consid- 
eration that  is  personal,  private,  or  sel- 
fish."    And  see  28  Penn.  St.  35. 

The  New  York  doctrine  of  charitable 
nses  is  drawn  from  the  common  law  and 
local  statutes,  irrespective  of  43  Eliz. 
Denio,  J.,  in  Williams  v.  Williams,  4 
Seld.  525. 

^  See  gift  to  meritorious  widows  and 
orphans  to  keep  them  from  becoming 
paupers,  in  Camp  v.  Crocker,  54  Conn. 
21 ;  Sowers  v.  Cyrenius,  y^  Ohio  St.  29. 
But  a  gift  to  "  charitable  objects,"  such 
charitable  purposes  as  A.  shall  deem 
proper,  etc.,  is  of  very  doulitful  validity. 
53  Conn.  242;  Prichard  v.  Thompson, 
95  N.  Y.  76.  Cf.  Goodale  v.  Mooney, 
60  N.  H.  528.  A  will  may  use  such 
expressions  as  "benevolence,"  "chari- 
table assistance  and  benefit,"  etc.,  in 
the  general  sense  of  charity.  14  R.  I. 
412;    52  Conn.  412. 


2  See  §  464;  2  P.  Wms.  387;  Jubber 
V.  Jubber,  9  Sim.  503;  Wms.  Exrs.  1155. 
But  mistakes  of  description  may  some- 
times be  corrected  by  construction.  I 
Bro.  C.  C.  9i;Tomliins  v.  Tomkins,  3 
Atk.  257;  Wms.  Exrs.  1152-1155,  and 
Perkins's  notes. 

^  After  some  fluctuation  in  the  de- 
cisions, the  limitation  finally  fixed  upon 
is  the  period  of  a  life  or  lives  in  being 
at  the  death  of  the  testator,  and  twenty- 
one  years  more;  adding,  in  case  of  a 
posthumous  child,  a  few  months  longer, 
to  allow  for  the  period  of  gestation.  If 
a  further  postponement  be  attempted, 
the  limitation  is  void.  Eengough  v. 
Edridge,  I  Sim.  173;  7  Bligh,  202;  I 
Jarm.  Wills,  226-229.  Of  two  possible 
constructions,  that  seems  to  be  preferred 
which  would  avoid  violating  the  rule 
against  perpetuities  and  thus  vitiating 
the  bequest.  Rand  v.  Butler,  48  Conn. 
293.  Thus,  where  trustees  were  directed 
to  pay  over,  in  "  three  years  or  earlier 
or  later,  in  their  discretion,"  after  a 
designated  life  should  expire.  Branden- 
burg z/.  Thorndike,  139  Mass.  102. 

A  devise  of  property  to  one's  widow 
for  life,  and  after  her  death  the  prop- 
erty to  become  part  of  her  residuary 
estate  is  valid  within  the  rule.  Pailey 
V.   Bailey,  97  N.   Y.  460.    Semble,  the 


570 


CHAP.  III.] 


LEG.\CIES. 


§466 


locked  up  too  long,  to  accumulate  for  distant  posterity,  and 
so  as  to  debar  immediate  survivors  of  the  decedent  from 
receiving  income  as  well  as  capital.^ 

§  466.  Legacies  Absolute  or  Conditional,  Vested  or  Con- 
tingent.—  Legacies  maybe  made  conditional;  the  condition 
annexed  being  either  precedent  or  subsequent ;  so  that,  on 
the  one  hand,  the  bequest  may  never  take  effect,  or,  on  the 
other,  it  may  take  effect  with  the  liability  of  being  afterwards 
defeated.  Legacies,  however,  are  usually  absolute,  or  are 
so  given  without  condition  as  to  vest  immediately  and  fully. 
Devises  and  legacies,  moreover,  may  be  vested  or  contingent, 


"  life  or  lives  in  being  "  may  be  those 
of  strangers  instead  of  beneficiaries. 
lb.  Life  or  lives  in  being,  without 
the  addition  of  twenty-one  years,  is 
the  limit  of  suspension  in  some  State 
codes.  61  Wis.  469;  20  Fed.  R.  792; 
102  N.  Y.  161.  For  a  corresponding 
prohibition  of  fidei  cotnmissiim  under 
the   Louisiana    code,    see  36    La.  An. 

754- 

A  tendency  to  perpetuity  is  no  objec- 
tion, however,  to  a  charitable  bequest; 
for  charity,  it  is  said,  never  fails.  2  Redf. 
Wills,  546,  547;  Odell  V.  Odell,  10 
Allen,  I ;  Williams  v.  Williams,  2  Seld. 
525.  But  a  gift  to  keep  family  tombs  in 
perpetual  repair  is  objectionable  under 
the  rule  of  the  text.  10  Jur.  N.  S.  648; 
Coit  V.  Comstock,  51  Conn.  352;  Det- 
willer  V.  Hartman,  37  N.  J.  Eq.  347; 
Fite  V.  Beasley,  12  Lea,  328;  79  Ala. 
423.  And  so  as  to  funds  left  for  a  brass 
band  to  come  to  the  grave  every  year 
and  play  dirges.  37  N.  J.  Eq.  347.  The 
American  rule  against  perpetuities  is 
like  the  English,  but  statute  qualifica- 
tions are  found.     See  23  Hun,  223. 

^  See  Thellusson  v.  Woodford,  4  Ves. 
227.  The  usual  rule  applies  (where  no 
statute  intervenes)  to  capital  and  income 
alike.  Mr.  Thellusson's  will  gave  a 
large  fortune  to  accumulate  in  trust,  in- 
come being  added  to  principal,  during 
all  the  lives  in  being  at  his  decease,  and 
for  twenty-one   years   more;    in   other 

57 


words,  for  the  entire  period  permitted 
by  the  rule  against  perpetuities.  .Such 
was  the  public  indignation  in  England 
at  this  heartless  bequest,  that  Parlia- 
ment passed  an  act  (39  &  40  Geo.  III. 
c.  98)  which  forbade  accumulation 
thenceforth  under  trusts  longer  than 
the  life  of  a  grantor  or  settler,  and  the 
term  of  twenty-one  years  after  his  death, 
or  during  the  minority  of  such  as  would 
otherwise  be  entitled  under  the  will. 
This  act,  still  styled  the  "  Thellusson 
act,"  loads  the  testator's  memory  with 
a  reproach  which  may  well  outlast  the 
suspension  of  his  benefaction.  The  re- 
straints of  this  act  apply  not  only  to 
cases  expressly  providing  for,  but  to 
such  also  as  by  implication  result  in, 
such  accumulations.  See  2  Schoul. 
Wills;  I  Jarm.Wills,  293.  In  the  several 
United  States,  either  there  is  corre- 
sponding local  legislation  on  this  point, 
or  else  the  general  restriction  as  to 
accumulating  both  capital  and  income 
prevails.  95  N.  Y.  13,  103;  63  Wis. 
529. 

As  to  the  English  statute  of  mort- 
main, which  imposes  especial  restraints 
upon  devises  of  land  for  charitable  pur- 
poses, &c.,  see  act  9  Geo.  II.  c.  36 
(1736);  I  Jarm.  Wills,  219;  Wms. 
Exrs.  1058  e(  seq.  American  policy  is 
not  uniform  in  this  respect.  See  2  Kent 
Com.  283;   79  N.  Y.  327;  69  Mo.  492. 


§  4^7  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

and  may  be  given  under  such  limitations  as  to  confer  an 
interest  in  possession  to  one,  and  an  interest,  by  way  of  re- 
mainder, to  another  ;  thus  giving  rise  to  many  abstruse  ques- 
tions not  properly  discussed  in  a  treatise  like  this.^  But 
every  interest  under  a  will  vests  at  the  decease  of  the  tes- 
tator, unless  otherwise  provided ;  and  even  an  interest  to 
take  effect  in  possession  after  a  precedent  one,  may  vest 
simultaneously  with  it  in  right,  so  as  to  devolve  upon  the 
executors  or  administrators  of  any  legatee  who,  having  sur- 
vived the  testator,  may  die  afterwards  before  his  possession 
has  vested  ;  nevertheless,  an  interest  which  is  clearly  con- 
tingent must  be  so  construed,  however  inconvenient  to  a 
beneficiary  and  his  representatives. 

§  467.  Lapsed  Legacies  ;  General  Rule.  —  There  is  an  implied 
condition,  precedent  to  all  legacies,  founded  in  the  ambula- 
tory character  of  the  will  itself,  during  the  maker's  own  life  ; 
namely,  that  the  testator  must  first  die,  leaving  the  instru- 
ment as  his  last  true  will,  before  it  can  operate  as  such.  The 
death  of  the  legatee  named  therein  before  the  testator,  causes, 
therefore,  the  legacy  to  lapse  ;  while,  as  the  preceding  section 
shows,  the  condition  precedent,  or  contingency  with  which 
the  bequest  may  have  been  coupled,  produces  a  lapse  in 
various  instances  where  the  legatee  dies  after  the  testator. 
For  a  lapsed  legacy  is  one  which  never  vests:  either  (i)  in 
consequence  of  the  death  of  the  legatee  before  the  testator ; 
or,  (2)  because,  notwithstanding  the  legatee  survive  the  tes- 
tator, he  dies  before  his  interest  can  be  said  to  have  vested 
under  the  will.  Lapsed  legacies  are  most  commonly  of  the 
former  kind.^ 

There  are  cases  where  the  death  of  the  legatee,  subsequent 
to  the  testator's  death,  will  cause  the  legacy  to  lapse,  his 
interest  not  having  vested  in  the  meantime.     Such  is  not  the 

1  See  Wms.  Exrs.  889;  i  Jarm.  Wills,  Exrs.  1204-1206;  I  P.  Wms.  83.  As 
799;  2  Schoul.  Wills  (in  preparation),  to  the  presumption  of  survivorship 
For  a  recent  example  of  condition  sub-  where  both  testator  and  legatee  perished 
sequent  in  a  legacy,  see  Hammond  v.  by  the  same  calamity,  see  Lord  Cran- 
Hammond,  55  Md.  575.  And  see  Clay-  worth  in  Underwood  v.  Wing,  4  De  G. 
ton  V.  Somers,  27  N.  J.  Eq.  230.  M.  &  G.  633,  661.     And  see  Maitland 

2  Swinb.   pt,  7,  §   23,  pi.    i;    Wms.  f.  Adair,  3  Ves.  231. 

572 


CHAP.  III.] 


LEGACIES. 


§468 


general  rule ;  but,  if  the  legatee  die  after  his  testator,  and 
before  payment,  his  own  executor  or  administrator  may 
demand  the  legacy  of  the  testator's  representatives.^  Yet, 
where  the  will  expressly  and  absolutely  postpones  payment 
of  the  legacy  until  a  later  period  than  the  testator's  death, 
we  are  to  inquire  what  is  the  intent  of  such  a  provision.^ 

§  468.  Cumulative  Legacies ;  Repetition  or  Substitution  of 
Legacies.  —  Where  the  same,  or  a  different  amount  of  money 
or  other  things,  as  estimated  by  quantity,  is  bequeathed  to 
the  same  person  by  the  same  will  more  than  once,  it  may  be 
a  question  whether  the  legatee  shall  by  intendment  take  both 
amounts  or  one  only ;  for,  in  the  one  case,  the  legacies  are 
cumulative,  while,  in  the  other,  a  mere  repetition  of  the  be- 
quest, or  else  a  substitution,  takes  place. '^ 


1  Swinb.  pt.  7,  §  23,  pi.  I ;  Gartshore 
z/.  Chalie,  10  Ves.  13;  Wms.  Exrs.  1224; 
Hester  v.  Hester,  2  Ired.  Eq.  330;  Tra- 
ver  V.  Schell,  20  N.  Y.  89,  next  c. 

^  If  the  testator's  apparent  intention 
was  to  emphasize  the  law  concerning 
the  time  of  payment,  or  to  modify  it  for 
the  convenience  of  the  legatee  on  the 
one  hand,  or  of  his  own  executor  on 
the  other,  the  title  vests  immediately 
upon  his  death,  following  the  usual 
rule;  and  so,  in  general,  where  it  ap- 
pears to  have  been  intended  that  one's 
bounty  should  immediately  attach  upon 
his  death.  If,  however,  the  context  and 
circumstances  forbid  such  favorable  in- 


rule,  that  what  appears  to  have  been 
the  testamentary  intent  should  prevail, 
is  examined  at  length  in  Wms.  Exrs. 
1224-1251. 

3  Wms.  Exrs.  1289;  2  Schoul.  Wills 
(in  preparation) ;  Guy  v.  Sharp,  i  My. 
&  K.  589;  Hubbard  v.  Alexander,  3  Ch. 
Div.  738;  Wms.  Exrs.  1290-1294;  De 
Witt  V.  Yates,  10  Johns.  156;  Rice  v. 
Boston  Aid  Society,  56  X.  H.  191; 
.Suisse  V.  Lowther,  2  Hare,  424,  432, /^r 
Wigram,  V.  C.  The  testator's  intention 
should  be  the  main  guide;  though  to 
fortify  the  construction  in  cases  of  doubt, 
various  presumptions  are  stated  by  courts 
of  equity.     Cases,  supra  ;  Tweedaie  v. 


terpretation,  and  the  testator  obviously     Tweedaie,  10  Sim.  453;   Guy  v.  Sharp, 


meant  to  incorporate  time,  not  with  the 
payment,  but  with  the  substance  of  the 
gift,  as  a  condition  precedent  to  vesting 
the  title,  the  legacy  is  here  contingent 
in  interest;  and,  being  contingent,  it 
lapses  if  from  death  of  the  legatee  or 
other  cause  it  cannot  have  vested. 
Courts  of  equity  incline,  on  the  whole, 
to  adopt  a  construction  most  favorable 
to  vesting  the  interest,  provided  the 
testator's  wishes  be  not  thereby  violated. 
3  Woodeson,  512;  Wms.  Exrs.  1224; 
Eldridge  v.  Eldridge,  9  Cush.  516. 

This   subject,   which    presents    many 
abstruse  inquiries,  all  resolvable  by  the 


I  My.  &  K.  589.  For  recent  instances 
of  legacies  held  to  be  cumulative  and 
not  merely  repetitive  or  substitutionary, 
see  Utley  v.  Titcomb,  63  X.  H.  129; 
Barnes  v.  Hanks,  55  Vt.  317;  Sponsler's 
Appeal,  107  Penn.  St.  95.  Legacies,  not 
of  the  same  kind,  or  not  payable  in  the 
same  event,  or  at  the  same  time,  may 
well  be  presumed  cumulative.  Wray  v. 
Field,  2  Russ.  257.  But  where  legacies 
are  of  the  same  amount  and  character, 
the  presumption  that  they  were  intended 
to  be  cumulative  is  a  slight  one,  and 
may  be  easily  shaken.  17  Ves.  34,  41; 
Wms.  Exrs.  1291,  and  numerous  cases 


573 


§  470  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Added  legacies  or  substituted  legacies  are  presumed  to 
carry  the  incidents  of  the  original  legacy ;  though  such  pre- 
sumptions yield  readily  to  proof  of  the  testator's  real  in- 
tention. ^ 

§  469.  Satisfaction  of  Debts  or  Portions  by  Legacies.  —  There 
is  an  old  rule,  founded  upon  a  series  of  English  equity  prece- 
dents, which,  to  quote  Judge  Redfield's  expression,  seems 
still  to  maintain  "a  kind  of  dying  existence,"  though  whimsi- 
cal and  unsatisfactory  ;  namely,  that  where  a  debtor  bequeaths 
to  his  creditor  a  legacy  equal  to  or  greater  than  the  amount 
of  the  debt,  it  shall  be  presumed,  all  other  things  being 
equal,  that  he  meant  the  legacy  should  operate  in  satisfaction 
of  the  debt. 2  Upon  this  presumption,  supposing  it  available 
'-and  how  unlikely  it  is  that  one  should  intend  discharging, 
by  way  of  favor,  and  on  the  contingency  of  his  death,  that 
which  subsists  as  a  legal  obligation,  regardless  of  that  con- 
tingency or  of  his  last  wishes,  and  taking  precedence  of  all 
legacies,  a  moment's  reflection  will  show — the  courts  have 
engrafted  various  exceptions,  often  laying  hold  of  little  cir- 
cumstances or  expressions,  as  if  to  show  a  readiness  to  re- 
verse the  rule.^ 

§  470.  Release  of  Debts  by  Legacies.  —  Where  a  creditor 
bequeaths  a  legacy  to  his  debtor,  without  clearly  indicating 

cited.     See  also   State  v.  Crossley,  69  §  439,  concerning  the  effect  of  appoint- 

Ind.  203.  ing  one's  creditor  his  executor. 

1  Cooper  V.  Day,  3  Meriv.  154;  Wms.  As  for  satisfying  portions  by  a  legacy, 
Exrs.  1296;  7  Sim.  237;  Duncan  v.  a  rule  of  presumption  is  applied  by  the 
Duncan,  27  Beav.  386.  equity    decisions  ;     though    here,   once 

2  2  Redf.  Wills,  185, 186;  Bronson,  J.,  more,  the  question  is  mainly  one  of  the 
in   Eaton   v.    Benton,    2   Hill   (N.  Y.)  presumed  intention  of  the  testator. 
576;    Wms.  Exrs.  1297.  An  accepted  legacy  to  A.  of  more  than 

^  Wms.  Exrs.  1298,  and  cases  cited;  the  testator  owed  her,  the  will  declaring 
I  Atk.  428;  3  Atk.  96;  Byde  v.  Byde,  expressly  that  it  shall  be  in  Heu  of  all 
I  Cox,  44;  Rawlins  v.  Powel,  I  P.  Wms.  claims  of  A.  against  the  testator's  estate, 
299;  2  P.  Wms.  132,  343;  Nicholls  v.  of  course  satisfies  the  debt.  Rusling  v. 
Judson,  2  Atk.  300;  Wms.  Exrs.  1298;  Rusling,  42  N.  J.  Eq.  594.  But  accept- 
Crouch  V.  Davis,  23  Gratt.  62;  Carr  v.  ance  of  a  legacy  does  not  usually  pre- 
Estabrooke,  3  Ves.  561.  Even  a  direc-  elude  one  from  making  a  claim  founded 
tion  in  the  will  to  "pay  all  debts  and  on  the  testator's  mismanagement  of  the 
legacies"  has  been  relied  on  as  the  legatee's  property.  Whittemore  z'.  Ham- 
foundation  of  an  exception.  3  Atk.  65;  ilton,  51  Conn.  153.  As  to  interest  on 
Field  V.  Mostin,  2  Dick.  543.    See  supra,  such  a  debt,    where  the  legacy  should 

cancel  it,  see  70  Iowa,  368. 

574 


CHAP.   III.]  LEGACIES.  §  470 

his  intention  in  so  doing,  the  presumption  appears  to  be  that 
the  debt  shall  not  thereby  be  released  or  extinguished  ;  and 
if  the  debt  be  further  evidenced  by  a  promissory  note  or 
other  writing,  and  the  writing,  documents,  or  securities,  ap- 
pear among  the  testator's  effects,  uncancelled,  and  as  though 
fit  to  be  treated  as  assets,  they  will  be  so  regarded.^  Under 
such  circumstances,  it  is  held  that  the  legacy  of  a  creditor 
to  his  debtor  may  be  retained  in  payment  pro  taiito,  though 
the  debt  were  barred  by  the  statute  of  limitations.'^  Where, 
however,  the  evidence  goes  to  show  that  the  creditor  meant 
to  release  the  debt  and  give  a  legacy  besides,  his  debtor  shall 
have  the  full  benefit  thereof;  ^  and  while  such  intention  ought, 
if  possible,  to  be  gathered  from  the  force  of  the  will,  courts 
of  equity  have  sometimes  explored  in  other  directions  to 
ascertain  whether,  as  between  creditor  and  debtor,  the  debt 
was  ever  remitted.*  A  liberal  construction  is  given  to  the 
intention  of  a  testator  to  forgive  a  debt.^ 

To  bequeath  expressly  the  debt  to  one's  debtor,  operates 
as  a  sort  of  testamentary  release  to  him  ;  but,  inasmuch  as  a 
testament  cannot  dispose  of  assets,  or  give  legacies  to  the 
injury  of  creditors  against  the  estate,  the  debt  must  needs 
continue  assets  for  their  benefit,  should  a  deficiency  appear.^ 

1  Wms.  Exrs.  1303;  Wilmot  z*.  Wood-  the  will  to  ascertain  what  a  testator 
house,  4  Bro.  C.  C.  226;  2  Schoul.  Wills  meant;  and  it  is  said  to  be  dangerous 
(in  preparation).  to  extend  the  doctrine  of  Eden  v.  Smyth, 

2  Coates  V.  Coates,  ^"^  Beav.  249;  where  the  testator's  books,  papers,  dec- 
Courtenay  v.  Williams,  3  Hare,  589;  laratioiis,  etc.,  were,  though  reluctantly, 
Wms.  Exrs.  1304;  Brokaw  v.  Hudson,  admitted.  See  Chester  v.  Urwick,  23 
27  N.J.  Eq.  135.  Local  statutes  some-  Beav.  404;  Wms.  Exrs.  1304;  2  Redf. 
times  provide  that  a  debt  due  from  a  Wills,  190,  note.  Yet  it  must  be  con- 
legatee  to  the  estate  may  be  deducted  ceded  that  a  transaction,  as  between 
from  his  legacy.  But  unless  the  intent  debtor  and  creditor,  may  lie  entirely 
of  the  will  is  clear,  a  debt  barred  by  outside  the  will,  notwithstanding  debtor 
limitations  cannot  be  thus  deducted,  or  creditor  be  himself  a  legatee;  nor  is 
Allen  V.  Edwards,  136  Mass.  138.  it  strange  for  a  testator  to  so  regard  it. 

8  Wilmot  V.  Woodhouse,  4  Bro.  C.  C.  '  See  37  N.  J.  Eq.  377,  where  the  will 

226;    Hyde    v.    Neate,    15    Sim.    554;  spoke   of   two   mortgages   when    there 

Wms.  Exrs.  1304.  were  three.     76  Ala.  381. 

*  Eden  v.  Smyth,  5  Ves.  341.     View-  ^  Rider  v.  Wager,   2   P.   Wms.   331. 

ing  the  subject  of  releasing  or  satisfying  As  to  the  effect  of  appointing  a  debtor 

debts  by  legacies  as  one  of  purely  tes-  to  be  one's  executor,  see  supra,  §  208. 

tamentary    interpretation,    there    seems  The  bequest  of  a  note  to  its  maker  gives 

legal  inconsistency  in  going  far  outside  him   the   absolute   title;    the   testator's 

575 


§  47-  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  471.  Ademption  of  Legacies.  —  A  few  words  should  be 
added  on  the  subject  of  ademption.  A  bequest  fails,  doubt- 
less, not  only  by  a  lapse,  but  when  revoked.^  Aside  from  the 
revocation  of  a  testamentary  instrument  as  such,  any  particu- 
lar legacy  or  legacies  may  be  revoked,  or  to  use  the  more 
appropriate  word,  adeemed.  By  the  word  "ademption,"  em- 
ploying its  Latin  figure,  is  signified  the  extinction  or  taking 
away  of  a  legacy  in  consequence  of  some  act  of  the  testator 
which,  though  not  directly  a  revocation  of  the  bequest, 
should  be  considered  in  law  as  tantamount  thereto.^  The 
ademption  of  a  legacy  is  distinguishable,  of  course,  from  its 
lapse.'^ 

§  472.  Trustees  under  a  Will ;  Equity  and  Probate  Jurisdic- 
tion;  Duties  of  a  Trustee;  Equity;  Probate  Procedure.  —  In 
order  to  carry  out  special  provisions  under  a  will,  which  look 
to  the  preservation  of  a  principal  fund  for  specified  schemes, 
such  as  charity,  or  so  as  to  pay  income  only  to  persons  desig- 
nated, until  the  happening  of  some  event,  or  so  that  the 
fund  may  accumulate,  and  generally  where  the  intent  is  to 
postpone  the  full  beneficial  vesting  of  the  legacy  in  the 
ultimate  legatee,  trustees  are  usually  designated  under  a  will 
to  hold  and  manage  the  fund,  apart  from  executors.  These 
trustees  act  subject  to  the  approval,  direction,  and  sometimes 
selection  of  courts  of  equity ;  and,  properly  speaking,  the 
administration  of  these  testamentary  trusts  is  a  branch,  and 
quite  an  important  one,  of  equity  jurisdiction.  In  many 
parts  of  the  United  States,  however,  the  probate  courts  in 
the  several  counties  have  general  equity  powers,  conferred 
by  statute,  and  exercised  concurrently  with  the  supreme 
tribunal  of  the  State.* 

The  appointment,  qualification,  and  immediate  supervision 
of  testamentary  trustees,  devolves,  however,  under  American 

estate   not   being   deficient   for  paying  Mass.  Gen.  Stats,  c.  100,  §  22.     Never- 

what  he  owed.     Herrick  v.  Wright,  63  theless,  the  prevailing  dispt)sition  is  to 

N.  H.  274.  bring  important  questions  affecting  the 

1  See  stipra,  §  82.  administration  of  testamentary  trusts  to 

2  I  Jarm.  Wills,  147;  Wms.  Exrs.  the  supreme  court  of  equity  and  pro- 
1321;    2  Schoul.  Wills  (in  preparation),  bate,  in  order  that  the  jurisdiction  may 

8  Supra,  §  467.  be  clear  and  the  decree  conclusive. 

*  2  Schoul.  Wills  (in  preparation) ; 

576 


CHAP.   III.]  LEGACIES.  §  473 

codes,  upon  the  local  probate  courts,  in  the  first  instance,  as 
in  case  of  executors.  Not  only  are  such  courts  emi)o\vered 
to  appoint  trustees  in  various  instances  of  trust  not  testa- 
mentary, where  there  is  a  vacancy  under  the  instrument, 
and  no  adequate  provision  made  for  supplying  it,  but  every 
trustee  appointed  by  will  should  petition  for  a  confirmation 
of  his  appointment,  file  a  sufficient  bond  with  the  probate 
judge  (with  or  without  security,  as  the  case  may  be),  and 
procure  letters  under  the  probate  seal,  before  entering  upon 
active  official  duties.^  The  duties  of  testamentary  trustee 
are  distinct  from  those  of  executor,  and  require  separate  cre- 
dentials, even  though,  as  often  happens,  the  testator  has 
designated  the  same  person  to  serve  in  both  capacities. 
Where  a  vacancy  from  some  cause  occurs  in  the  office,  as 
where  the  trustee  named  declines,  resigns,  dies,  or  is  removed 
before  the  objects  thereof  are  accomplished,  the  probate 
court,  upon  the  usual  formalities,  makes  an  appointment  for 
one  to  act  alone  or  jointly  with  others,  as  the  case  may  be. 
Co-trusteeship  survives  like  co-executorship.  Like  an  execu- 
tor, the  testamentary  trustee  is  required  to  return  an  in- 
ventory and  render  his  account  regularly  to  the  probate 
court ;  and,  for  misconduct  or  culpable  negligence,  he  is  liable 
to  removal,  his  bond  to  the  judge  being  put  in  suit  for  the 
benefit  of  those  injured  by  his  breach  of  trust.  Subject  to 
the  usual  variation  of  State  enactments,  the  general  rule,  in 
the  United  States,  is  to  place  testamentary  trustees  under  a 
probate  supervision  similar,  mutatis  nmtandis^  to  that  of  ex- 
ecutors, and  from  a  like  sedulous  regard  for  the  welfare  of 
the  beneficiaries.2  From  the  probate  decree  in  such  trusts, 
the  usual  appeal  lies  to  the  supreme  tribunal  of  the  State.^ 

§  473-  Construction  of  "Wills  and  Legacies ;  Bill  of  Inter- 
pleader to  remove  Doubts,  etc.  —  The  construction  of  a  will, 
and  the  true  interpretation  of  an  executor's  or  trustee's  duties 
in  conformity  thereto,  raise  other  issues  which  pertain  more 

1  Mass.  Gen.  Stats,  c.  lOO.  »  Smith  Prob.  Law,  238.     See  Perry 

2  Smith  Prob.  Law,  93,  97,  loi,  236;     Trusts,  §  282  el  seq. ;   2  Schoul.  WilU 
Redf.  Surr.  Pract.  424.  (in  preparation);  supra,  §  247. 

577 


§  473  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Strictly  to  an  equity  jurisdiction,  where  the  course  to  be  pur- 
sued is  left  uncertain.  The  convenient  method  is  to  bring  a 
bill  of  equity  in  the  nature  of  a  bill  of  interpleader,  to  procure 
instructions  how  to  act ;  thus  saving  to  the  fiduciary,  executor 
or  trustee,  the  hazards  of  later  litigation,  and  avoiding  on  his 
own  part  a  perilous  risk.  Whenever  there  is  reasonable 
doubt  in  regard  to  the  proper  construction  of  an  instrument 
creating  a  testamentary  trust,  the  rule  is,  that  chancery  may 
be  resorted  to  for  instructions.^ 

As  between  the  executors  and  trustees  under  a  will,  it 
would  seem  a  rational  distinction,  that,  when  the  doubtful 
interpretation  relates  simply  to  administering  a  fund  or  funds 
turned  over  to  the  trustees  for  purposes  prescribed  by  the 
testator,  the  trustees  are  the  proper  persons  to  procure  in- 
structions ;  but,  that  where  such  doubt  relates  substantially 
to  the  administration  of  the  estate,  as  in  determining  how 
the  executor  shall  perform  his  own  duties,  so  as  to  discharge 
himself  of  legacies  and  the  residue  for  whose  satisfaction  he 
is  oflficially  responsible,  he  rather  should  be  the  petitioner. 
While,  however,  the  executors  or  the  trustees,  as  the  case 
may  be,  take  more  commonly  the  initiative,  and  bring  a  bill 
setting  forth  the  facts,  and  calling  upon  the  claimants  to 
settle  their  rights  before  the  court,  the  procedure  is  not  left 
wholly  to  their  option  ;  but  any  party,  claiming  an  interest 
affecting  the  construction  of  the  will,  legatee  or  cestui  qtie 
trust,  may  institute  the  suit  against  the  executor  or  trustee 
and  all  other  parties  interested  in  the  question. ^ 

Where  directions  are  thus  sought  in  regard  to  the  interpre- 
tation of  a  will  or  trust,  and  the  duty  of  those  appointed  to 
carry  its  provisions  into  effect,  the  whole  expense  of  the 
litigation   is  thrown   upon  the  estate,  unless  the  petitioner 

^  Supra,  §  265 ;   2  Schoul.  Wills  (in  will,  he  may  maintain  a  bill  in  equity 

preparation).  against  the  cestui  que  trust,  and  a  cred- 

2  Martineau  v.  Rogers,  8  De  G.  M.  &  itor  who  has  brought  suit  against  him, 

G.  328;    Maxwell  v.  Maxwell,  L.  R.  4  to  determine  whether  moneys  received 

H.  L.  521 ;   Bowers  v.  Smith,  10  Paige,  by  him  from  the  representatives  of  the 

193;  Treadwell  v.  -Cordis,  5  Gray,  341;  deceased  executor  are  to  be  accounted 

2  Story  Eq.  Jur.  824,  and  cases  cited.  for  as  belonging  to  the  estate  or  the 

Where  one  is  both  administrator  with  trust.     Putnam  v.  Collamore,  109  Mass. 

the  will  annexed  and  trustee  under  the  509.     See  Clay  v.  Gurley,  62  Ala.  14. 


CHAP.  III.]  LEGACIES.  §  474 

discloses  a  frivolous  case.^  This  may  prove  an  especial  hard« 
ship  to  residuary  legatees  ;  and  no  precaution  is  so  good  as 
that  of  making  one's  own  testamentary  scheme  clear,  simple, 
and  just. 2 

§  474.  Construction  of  Wills,  Legacies,  etc.  —  To  enter  into 
a  discussion  of  the  general  rules  affecting  the  construction  of 
wills  and  the  legacies  given  by  a  testator  is  foreign  to  the 
purpose  of  this  work.  The  cases  under  this  head,  which  are 
very  numerous,  may  be  found  in  general  treatises  on  wills, 
English  and  American,  and  this  author  has  discoursed  upon 
the  subject  at  length  in  a  companion  volume.^  The  leading 
principle,  which  the  courts  of  both  countries  respect,  is  that 
the  testator's  intent  shall  be  followed,  if  possible ;  this  intent, 
to  use  a  common  figure  of  judicial  speech,  being  the  pole  star 
by  which  the  court  should  be  guided.^  Such  a  rule,  to  be 
sure,  leads  into  various  courses,  since  every  will  must  be 
steered  by  its  own  luminary.  Yet,  uniform  justice  is  better 
than  strict  consistency  ;  and  it  is  observable,  that,  while  in 
contracts  the  common  mind  of  two  or  more  must  be  sought 
out  from  their  mutual  expression,  a  will  expresses  but  one 
mind  essentially,  and  one  disposition ;    and  again,  as   inter 

^  Studholme  v.  Hodgson,  3  P.  Wms.  conjectural  intention,  which  should  gov- 

303;  Attorney-General  v.  Jesus  College,  em,  the  words  of  that  instrument  being 

7  Jur.  N.  S.  592;   Sawyer  v.  Baldwin,  applied  to  the  subject-matter  and  sur- 

20  Pick.  378;    Rogers  v.  Ross,  4  Johns,  rounding  circumstances.     (2)  The  gen- 

Ch.  608;    Rowland  v.  Green,  108  Mass.  eral  intent  of  the  testator  must,  if  clearly 

283.     English    practice    is    to    pay    the  expressed,  control  particular  terms  which 

fund   into   court,   and  have   the  parties  are  not  clear  and  consistent  therewith, 

appear  and  obtain  the  judgment  of  the  (3)  While  evident  intent  will  override 

courts  as  to  their  rights.     Hooper's  Will,  technical  rules  of  construction,  the  tes- 

Re,  7  Jur.  N.  S.  595.  tator's   words   must   be    interpreted    ac- 

2  Chancery  seeks,  if  it  be  practicable,  cording  to  the  se'nse  attached  to  them 

to  adjust  the  costs  ratably  to  the  various  by    long    authority,    unless    they    were 

interests    affected    by  the  construction,  manifestly    used   in    a    different    sense. 

See  L.  R.  7  Eq.  414.  (4)  A  clearly  expressed  intention  in  one 

"  See  Schoul.  Wills,  Part  VI.  part  of  the  will  must  not  yield  to  donbt- 

*  See  Quincy  v.  Rogers,  9  Cush.  294,  ful  construction   in   any  other  portion. 

per  Shaw,  C.  J.  (5)  Punctuation  is  of  minor  importance 

To  this  proposition  various  qualifica-  in  establishing  construction.  (6)  Fool- 
tions  are  found,  which  writers  on  the  ish  and  unjust  provisions  may  be  con- 
law  of  wills  thus  summarize  from  the  sistently  enforced,  if  in  accord.ance  with 
decisions:  (i)  It  is  the  intention  of  the  the  testator's  intent,  and  neither  illegal 
testator  as  expressed  in  his  will,  not  a  nor  contrary  to  good  morals;  yet  a  will 

579 


§  475  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

vivos,  parties  may  oppose  their  own  proofs,  whereas  the  tes- 
tator necessarily  confides  his  meaning  to  an  instrument  which 
courts  of  equity  are  sacredly  enjoined  to  interpret  justly  as 
between  him  and  those  he  leaves  behind,  should  controversy 
arise,  death  having  closed  his  own  lips. 

§  475-  Doubtful  Points  settled  by  the  Agreement  of  all  Parties 
in  Interest.  —  It  is  a  general  principle,  that  all  the  parties 
interested  in  an  estate  or  fund,  if  competent  and  sui  juris, 
may,  by  their  own  mutual  agreement,  waive  stipulations 
under  the  will  which  affect  its  distribution,  or  agree  upon 
some  particular  construction  of  doubtful  provisions,  so  that 
the  will  shall  be  carried  out  accordingly.  An  executor,  by 
procuring  some  such  mutual  agreement,  may  often  relieve 
himself  of  an  embarrassing  responsibility  without  invoking 
the  assistance  of  the  court  at  all.  Legislation  sometimes 
extends  expressly  the  right  of  thus  adjusting  conflicting 
interests,  by  empowering  the  executor  or  other  fiduciary  to 
bind  the  future  contingent  interests  of  parties  not  capable  of 
being  represented,  wherever  the  court  of  equity  shall  declare 
the  operation  of  such  proceeding  to  be  just  and  reasonable  in 
its  effect  upon  such  interests.^ 

should  be  brought  by  construction  as  Wills  (ed.  1861),  762,  cited  in  i   Redf. 

near  reason  and  good  sense  as  practica-  Wills,  425,  note.    See  Mr.  Justice  Miller 

ble.     (7)  Some  meaning  will  be  given  in  Clarke  z/.  Boorman,  18  Wall.  493,  502. 

to  the  instrument  if  possible.    Numerous  And  since  the   above  was  written,  the 

other  rules   of  construction    might   be  present   author  has  prepared  his   own 

adduced,  perhaps,  however,  to  confuse  exposition  of  the   rules,   to  which  the 

rather  than   clear  the  subject;    for,  to  reader   is   referred    for   further  details, 

properly  construe  a  will,  natural  reason  Schoul.  Wills,  Part  VI. 

must  be  applied  to  the  language  of  the  A  will  speaks  for  some  purposes,  as 

instrument  under  the  light  of  surround-  good  sense  allows,  from  the  period  of 

ing  circumstances.     These  rules,  which  execution,  and  for  others  from  the  death 

are  stated  in  substance  as  above  in   i  of  the  testator;   but  it  never  operates 

Redf.  Wills,  433,  434,  are  supported  by  until    the   latter   period.     Jarm.   Wills, 

American  precedents.    English  rules  are  762;   Schoul.  Wills.  §  486. 

laid  down  at  greater  length  in  Jarman,  1  Brophy  v.  Bellamy,  L.  R.  8  Ch.  798. 

580 


CHAP.  IV.]   PAYMENT  AND  SATISFACTION  OF  LEGACIES.   §  476 


CHAPTER    IV. 

PAYMENT    AND    SATISFACTION    OF    LEGACIES. 

§  476.  Payment,  etc.,  of  Legacies  by  the  Executor ;  All  Valid 
Legal  Claims  take  Precedence.  —  With  the  preHminary  view  of 
legacies,  their  nature  and  incidents,  afforded  in  the  preceding 
chapter,  we  come  to  the  topic  which  more  especially  pertains 
to  the  present  treatise  ;  namely,  the  payment  and  satisfaction 
of  legacies  by  the  executor.  And  here,  it  should  first  be 
observed,  that  before  an  executor  can  safely  pay  over  legacies 
of  any  description,  he  must  settle  or  provide  for  the  adjust- 
ment of  all  valid  legal  claims  against  the  estate,  since  these 
take  regular  precedence,  regardless  of  a  testator's  wishes.^ 
Even  voluntary  bonds  and  other  debts  by  specialty,  whose 
seal  imports  a  consideration,  must  be  paid  in  preference  to 
legacies,  and  not  debts  founded  in  actual  consideration  alone.^ 

Much  discussion  has  arisen  upon  the  liability  of  a  represen- 
tative for  contingent  claims,  as  upon  some  outstanding  cove- 
nant in  a  deed,  or  condition  in  a  bond,  executed  by  his 
testator,  where  the  condition  or  covenant  is  not  yet  broken ; 
and  the  result  appears  to  be,  that  the  executor  is  not  obliged 
to  part  with  the  assets  to  particular  or  residuary  legatees, 
unless  fully  indemnified  against  such  contingent  claims.^ 
For,  while  an  executor  is  bound  to  pay  over  to  the  legatee, 
as  it  is  said,  upon  receiving  such  indemnity,^  the  decisions 
establish  that,  without  such  indemnity  or  impounding  part  of 
the  assets,  he  would  be  liable  to  answer  the  damages  de  bonis 
propriis,  should  the  covenant  or  condition  be  afterwards 
broken  so  as  to  become  absolute.^     Chancery  will  protect  an 

'  Lomas  v.  Wright,  2  My.  &  K.  769;  rane  v.  Robinson,  II   Sim.  378;   Wms 

Spode   V.   Smith,   3   Russ.  511;    Wms.  Exrs.  1 341-1344. 
Exrs.  1340.  *  Higgins  v.  Higgins,  4  Hagg.  244, 

2  Wms.  Exrs.  1015,  1341;    Gordon  v.  per  Sir  J.  Nicholl. 
Small,  53  Md.  550.  6  Cochrane  z/.  Robinson,  11  Sim.  378; 

2  Cro.  Eliz.  466;  Moore,  413;  Aleyn,  Wms.  Exrs.  1344;  Simmonds ».  Bolland, 

38;  Hawkins  v.  Day,  Ambl.  1 60;  Coch-  3  Meriv.  547. 

581 


§  477  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

executor  who  confides  in  its  guidance.^  It  formerly  required 
the  legatee,  in  all  cases,  to  give  the  executor  security  to  refund 
if  debts  should  afterwards  appear ;  ^  but  this  requirement  fell 
into  disuse ;  and  the  modern  chancery  practice  is  to  permit 
creditors  to  follow  assets  into  the  hands  of  legatees.^ 

A  kindred  inquiry  relates  to  the  payment  of  legacies  before 
claims,  of  which  an  executor  had  as  yet  received  no  notice, 
were  settled.  Whether  the  executor  would  remain  liable 
upon  debts  not  made  known  to  him  during  the  first  year  of 
his  office,  after  he  had  paid  over  all  assets  to  the  legatees, 
was  formerly  much  discussed  in  the  English  cases  ;  but  the 
rule  seems  at  length  to  have  been  well  established,  that  pay- 
ment of  the  legacies  is  no  defence  against  the  non-payment 
of  debts,  provided  the  assets  were  originally  sufficient  for 
legal  demands  against  the  estate  ;  *  unless,  perhaps,  the  failure 
of  the  creditor  or  claimant  to  give  notice  of  his  demand, 
involved,  by  lapse  of  time,  laches  and  the  presumption  of  a 
waiver  on  his  part.^ 

§  477.    Executor's    Bond    of    Indemnity  from    Legatees.  —  A 

legacy  may  be  payable  before  the  statute  period  of  limitation 
for  claims  has  elapsed.  A  payment  before  probate  of  the 
will  would  be  validated,  so  far  as  all  claim  by  the  legatee  is 
concerned,  by  the  probate  and  appointment.^  For  the  exec- 
utor's protection  in  this  or  other  cases  of  official  liability,  a 
refunding  bond  from  the  payee  is  proper.  And  it  is  quite 
common  for  American  codes  to  provide,  with  reference  to 
probate  practice,  that  such  bond  shall  be  given  by  a  legatee.'^ 

1  Dean  v.  Allen,  20  Beav.  i ;  England  Modern  American  legislation,  as  else- 
V.  Tredegar,  L.  R.  I  Eq.  544.  where  noticed,  removes  most  practical 

2  I  Ch.  Cas.  257;  3  My.  &  Cr.  41 ;  difficulties,  by  setting  a  reasonable  bar- 
Wms.  Exrs.  1348.  rier  to  the  presentment  of  claims  against 

^  I   Atk.  491;  Wms.  Exrs.   1348;   3  an  estate,  and  providing  for  impounding 

My.  &  Cr.  42.  assets,  under  the  probate  direction,  to 

*  Wms.  Exrs.   1 349-1 353  ;     Chelsea  meet   inchoate    or    contingent    claims. 

Water  Works  v.  Cowper,  i   Esp.  275;  Supra,  §§  418-420.     And  see  the  Eng- 

Hill  V.  Gomme,  I   Beav.  540;   Norman  lish  statute  22  &  23  Vict.  c.  35,  §  39,  to 

V.  Baldry,  6  Sim.  621;    Smith  v.  Day,  2  much  the  same  purport.     Wms.  Exrs. 

M.  &  W.  684.  1355;   L.  R.  3  Eq.  368. 

Mb.     A  debt  owing  by  the  legatee  ^  pin^ham  v.   Grant,    72   Me.    158; 

to  the  estate  may  be  set  off.     34  Hun,  §  238. 

104.  ''See  Mass.  Gen.  Stats,  c.  97,  §  21. 

582 


CHAP.  IV.]   PAYMENT  AND  SATISFACTION  OF  LEGACIES.   §  478 

§  478.  Legacies  are  usually  Payable  •within  a  Year  from  Tes- 
tator's Death. — The  rule  of  chancery,  borrowed  from  the  civil 
law,  makes  legacies  payable,  unless  the  will  fixes  a  later  date, 
at  the  expiration  of  one  year  from  the  testator's  death ;  the 
presumption  being,  that  such  delay  allows  the  executor 
reasonable  time  for  informing  himself  whether  the  estate 
is  ample  to  pay  both  debts  and  legacies.^  Within  the  first 
year,  therefore,  an  executor  cannot  be  compelled  to  pay 
over  legacies,  notwithstanding  the  will  itself  directs  their 
earlier  discharge,^  unless,  as  some  American  statutes  provide, 
one's  directions  to  that  effect  must  be  followed.'^  But,  as  this 
rule  is  set  for  the  convenience  of  an  estate,  executors  may  of 
choice,  and  in  fact  often  do,  pay  legacies  much  earlier  where 
the  estate  is  undoubtedly  ample  or  a  refunding  bond  is  given.* 
If  the  payment  of  a  legacy  is  postponed  by  an  intervening 
estate,  by  pending  litigation,  or  for  any  other  cause,  more 
than  a  year  after  the  testator's  death,  it  becomes  payable 
immediately  when  the  right  accrues,  and  the  executor  cannot 
claim  further  delay.^ 

Where  the  legacy  is  liable  to  be  devested  by  a  condition 
subsequent  or  limitation  over  upon  some  contingency,  the 
legatee  shall  nevertheless  receive  his  legacy  at  the  end  of 
a  year  from  the  testator's  death ;  and,  whether  security 
shall  be  required  of  such  legatee  to  refund  in  case  his  title  be 
devested,  depends  upon  circumstances ;  though  equity  dis- 
penses with  such  security,  unless  prudence  evidently  requires 
it  to  be  taken.^ 

On  a  sufficient  bond  being  given  by  a  There   is   no   estate   applicable   to  the 

residuary  legatee  for  the  benefit  of  other  payment  of  legacies  until  the  testator's 

legatees   entitled   to   security,   one   may  debts  are  paid.    Coddington  v.  Bispham, 

pay  over  without  regard  to  whether  the  36  N.  J.  Eq.  224;  Foltz  v.  Hart,  S4  Ind. 

interest  of  one  of  such    legatees  is  an  56;   §  476. 

estate  or  a  power.    Chandler  v.  Batchel-  ^  Wms.    Exrs.     1387,    and    Perkins's 

der,    61   N.    H.   370.     And  see   where  note. 

security  could  not  be   required,  Martin  *  i    Sch.   &   Lef.    12;   Garthshore  v 

V.  Lapham,  38  Ohio  St.  538.  Chalie,  10  Ves.  13. 

1  Wood  V.  Penoyre,  13  Ves.  333;  ^  ^^undy  t'.  Williams,  2  P.  Wnis.  478 
Miller  z/.  Congdon,  14  Gray,  114;  King's  Miller  v.  Philip,  5  Paige,  573;  Lord  v 
Estate,  II  Phila.  (Pa.)  26;   Wms.  Exrs.  Lord,  L.  R.  2  Ch.  782. 

1387;    State  V.  Crossley,  69  Ind.  203.  ^  Pawkes  v.  Gray,  18  Ves.  131 ;   Tag 

2  Benson  v.  Maude,  6  Madd.  15;  gard  v.  Piper,  118  Mass.  315;  Wms 
White    V.   Donnell,    3    Md.    Ch.    526.     Exrs.  1388,  and  Perkins's  note.     Where 


§  479  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

A  legacy,  given  under  a  will  in  the  form  of  an  annuity,  or 
as  regular  income  for  life,  follows  the  general  rule  as  to  the 
time  when  the  executor  must  begin  paying  it ;  that  is  to  say, 
the  first  payment  need  not  be  made  by  him  until  a  year  has 
elapsed  from  the  testator's  death ;  but  the  date  from  which 
the  annuity  or  income  shall  actually  commence,  and  the 
frequency  of  the  periodical  payments,  must  be  gathered  from 
the  expressions  of  the  will  and  the  testator's  obvious  intent.^ 

§  479-  "When  the  Legatee's  Right  vests ;  Rule  as  to  Annui- 
tants, Beneficiaries  for  Life,  etc.  —  Notwithstanding  a  year's 
possible  delay  in  paying  over  the  legacy,  a  legatee  is  entitled 
to  payment,  unless  the  will  speaks  differently,  as  of  the  date 
when  the  testator  died.^  It  is  the  executor's  duty  to  promptly 
notify  legatees  of  their  legacies,  and  if  from  any  ambiguity 
it  is  uncertain  who  are  legatees,  to  institute  a  bill  for 
ascertaining.^ 

Doubts  may  arise,  however,  in  case  of  a  legacy  by  way  of 
annuity  ;  for  the  testator  might  have  intended  it  to  commence 
from  the  end  of  the  first  year,  instead  of  what  is  more  rational, 
from  the  date  of  his  own  death.^  There  has  been  great 
fluctuation  of  opinion  in  the  English  equity  courts,  moreover, 
concerning  the  effect  of  a  bequest  of  use,  income,  or  interest 

a  legacy  was  given  to  the  father  on  con-  to  the  legacy  is  undisputed;  and  if  the 
dition  that  he  did  not  interfere  with  the  rights  of  others  to  the  legacy  are  in  con- 
education  of  his  daughter,  security  was  troversy,  these  rights  can  only  be  deter- 
required  by  the  court,  the  costs  being  mined  upon  a  final  accounting.  Riggs 
deducted  from  the  legacy.  Colston  v.  v.  Cragg,  89  N.  Y.  479;  92  N.  Y.  251. 
Morris,  6  Madd.  89.  As  to  lien  of  a  legacy  upon  the  land  on 

Executors  are  permitted  to  lend  to  a  which  it  is  charged,  see  Lombaert's 
devisee  or  legatee,  in  a  proper  case,  Appeal,  99  Penn.  St.  580. 
upon  the  security  of  his  interest.  2  Where  the  executor  is  directed  by  the 
Dem.  435.  An  advance  to  a  legatee  in  will  to  invest  a  legacy  and  pay  the  in- 
necessitous  circumstances  is  sometimes  come  to  another  for  his  life,  it  is  a  breach 
ordered,      i  Dem.  553;    65  Cal.  378.  of  his  official  bond  if  he    does   not   so 

1  Wms.    Exrs.    1390;    Irvin    v.    Iron-  invest,  but  uses  the  legacy  in  his  busi- 

monger,  2  Russ.  &  My.  531;    Storer  v.  ness.    Scituate  Court  v.  Angell,  14  R.  I. 

Prestage,  3  Madd.  167.     For  the  Massa-  495. 

chusetts    rule,  see   Wiggin   v.    Swett,  6  2  10  Ves.  I,  13;   supra,  §  467. 

Met.  194.     Statutes  sometimes  provide  »  xilton  v.  American   Bible  Society, 

for  compelling  an  executor  after  a  sum-  60  N.  H.  377.     Cf.  §  487,  n. 

mary  manner  in   probate  court  to  pay  *  See  Gibson  v.  Bott,  7  Ves.  96,  97; 

the  legacy.    2  Dem.  134,  230.    But  this  Wms.    Exrs.    1390;   Kent   v.   Dunham, 

jurisdiction  exists  only  where  the  right  106  Mass.  586. 

584 


CHAP.   IV.]       PAYMENT  AND  SATISFACTION  OF  LEGACIES.       §  48O 

in  property,  to  a  person  for  life,  and  then  the  principal  over  to 
others  ;  but  it  is  finally  well  established,  that  the  beneficiary 
for  life  shall  be  entitled  to  the  income  in  one  shape  or  another 
from  the  death  of  the  testator  ;  and  this,  notwithstantlin<^  the 
life  income  is  to  be  derived  from  a  residuary  fund  which 
might  not  be  ascertainable  until  two  years  or  more  had 
elapsed  from  the  executor's  appointment,  and,  moreover, 
might  have  to  be  transferred  by  the  executor  himself  to 
trustees  designated  in  the  will.^  American  courts  approve 
of  this  conclusion  ;2  and  there  are  local  American  statutes 
which  expressly  favor  such  construction  as  to  all  annuitants 
and  income  beneficiaries,  either  for  life  or  until  the  happening 
of  some  event.^ 

§  480.    Interest  and  Produce  of  Specific  Legacies.  —  Out  of 

regard  for  the  time  when  the  legacy  legally  vests,  it  is  deter- 
mined that  a  specific  legacy  shall  go  to  the  legatee,  with  what- 
ever interest,  income,  or  produce  may  have  accrued  thereon 
since  the  testator's  death  besides.  Thus,  a  specific  legacy 
of  domestic  animals  carries  subsequent  offspring  of  the 
females  and  all  profitable  usufruct ;  a  specific  legacy  of  stock, 
the  dividends  since  accruing ;  and  a  specific  legacy  of  notes, 
bonds,  or  other  incorporeal  personalty,  the  interest  and  cou- 

^  Wms.  Exrs.   1390,   1391,  and  cases  of  the  will  in  interest-bearing  securities, 

cited;    Brown  v.  Gellatly,  L.   R.   2  Ch.  the  "annual  interest,  income  and   divi- 

75 1;    Angerstein  v.  Martin,   1   Turn.  &  dends  thereof"   to  be  paid   to   the  life 

R.  232;   Taylor  v.  Clarke,  i   Hare,  161.  tenant,  and  on  his  death  the  "  principal 

2  Sargent  v.  Sargent,  103  Mass.  297;  or  capital  sum  "  to  be  divided  among  the 
Evans  v.  Inglehart,  6  Gill  &  J.  171 ;  remaindermen;  and  where  on  the  death 
Lovering  v.  Minot,  9  Gush.  151 ;  Wil-  of  the  life  tenant  who  received  the  fixed 
liamson  v.  Williamson,  6  Paige,  298 ;  interest  these  securities  sold  for  more 
Hilyard's  Estate,  5  Watts  &  S.  30;  than  the  original  investment,  it  was  held 
Cooke  V.  Meeker,  42  Barb.  533.  But  that  this  surplus  belonged  to  the  remain- 
see  Welsh  V.  Brown,  43  N.  J.  L.  37.  dermen.      (Jerry,  Re,  103  N.  Y.  445.     A 

3  Mass.  Gen.  Stats,   c.  97,  §§  23,  24.     dividend  being  declared  but  not  payable 
A  charge  of  an  annuity  on    devised     on  stock  before  the  life  beneficiary  died 

real  estate  will  be  enforced  in  equity  by  is  principal  and   not  income;    so  is  in- 

a  sale.      Merritt    v.   Bucknam,   78   Me.  t^rest  in  a  sinking  fund,  and  options; 

504.     An   annuity  given  by  a  will,  and  but  a  dividend  declared   after  the  death 

springing  solely  therefrom,  is  a  legacy,  of  the  life  beneficiary  from  earnings  ac- 

Heatherington  v.  Lewenburg,  61   Miss,  cumulated  previously  is  income.     Ker- 

372-  nochan.  Re.  104  \.  Y.  618.     See  further 

Where  a  fund  is  invested  by  direction  2  Schoul.  Wills  (in  preparation) ;  §  324. 


§  481  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

pons,  if  any,  appropriate  thereto  from  a  similar  date  ;  in  short, 
whatever  the  specific  thing  or  fund  has  legitimately  earned 
from  the  time  the  legatee's  right  became  vested. ^  Prudence 
dictates,  therefore,  that  the  executor  should  discharge  him- 
self of  specific  legacies  as  soon  as  he  is  satisfied  that  he  may 
safely  do  so,  considering  the  debts  ;  for,  while  he  retains  the 
specific  thing  or  fund  with  its  accretions,  he  must  account  as 
for  the  management  of  something  distinct  from  the  testator's 
general  estate. 

In  exceptional  cases  the  specific  bequest  of  an  incorporeal 
chose  is  found,  on  due  construction  of  the  will,  to  carry  even 
interest  accruing  in  the  lifetime  of  the  testator,  that  is,  from 
the  time  the  will  was  executed.^ 

§  481.  Interest  on  General  Legacies. — But,  as  to  general 
legacies,  the  rule  is  somewhat  different.  Prudence  in  the 
general  settlement  of  the  estate  is  here  requisite ;  but  the 
year's  delay  allowed  the  executor  operates  to  postpone  inter- 
est on  the  several  demands  of  legatees.  Interest*  is  recover- 
able, in  general,  from  the  time  such  a  legacy  becomes  payable, 
and  not  sooner ;  which  means,  usually,  after  the  expiration  of 
the  year  of  the  testator's  death.^  Though  the  testator 
directed  payment  of  the  legacy  "as  soon  as  possible,"  or 
"with  interest,"  this  does  not  change  the  rule;^  nor  are 
phrases  readily  construed  as  justifying  later  payments  with- 
out allowance  of  interest.^  And  even  though  the  fund  out  of 
which  payment  of  a  pecuniary  legacy  is  directed  should  bear 

1  Wms.  Exrs.  1424;  Sleech  v.  Thor-  specifically  charged  is  not  charged  with 
ington,  2  Ves.  Sen.  560;  Barrington  v.  a  general  pecuniary  legacy,  where  there 
Tristram,  6  Ves.  345;  Evans  v.  Ingle-  is  nothing  to  show  such  intention, 
hart,  6  Gill  &  J.  171;  Bristow  z^.  Bristow,  Davenport  v.  Sargent,  63  N.  II.  538. 
Kay,  600.  But  where  legacies  are  given  generally, 

2  Wms.  Exrs.  1438  ;  Harcourt  v.  and  the  residue  of  real  and  personal 
Morgan,  2  Keen,  274.  estate  is  given  afterwards  in  one  mass, 

3  Wood  V.  Penoyre,  13  Ves.  326;  the  legacies  are  charged  on  the  residue 
Grain  w.  Barnes,  i  Md.  Dec.  151;  Miller  of  realty  as  well  as  personalty.  Cook 
V.    Congdon,     14    Gray,     114;     King's  v.  Lanning,  40  N.  J.  Eq.  369. 

Estate,    II    Phila.   (Pa.)    26;     State   v.         *  Webster  w.  Hale,  8  Ves.  410;   Law- 
Crossley,  69  Ind.  203;  Wms.  Exrs.  1424;     rence  v.  Embree,  4  Bradf.  (N.  Y.)  Sur. 
2  Schoul.  Wills   (in    preparation) ;   41     364  ;   Bardett  v.  Slater,  53  Conn.  102. 
N.  J.  Eq.  39;    Springer's  Appeal,  ill         ^  Kent  v.  Dunham,  106  Mass.  586. 
Penn.  St.  228;  22  S.  C.  92.    Real  estate 

586 


CHAP.   IV.]       PAYMENT  AND  SATISFACTION  OF  LEGACIES.       §  48  I 

interest  meantime,  residuary  legatees  are  presumed  entitled 
to  the  benefit.^  But,  if  the  will  clearly  directs  the  payment 
of  interest  from  an  earlier  date,  the  bequest  is  enlarged 
accordingly.  And,  where  the  legacy  is  decreed  to  be  in  satis- 
faction of  a  debt,  the  equity  practice  is  to  allow  interest  from 
the  death  of  the  testator.^  Where,  moreover,  the  executor 
voluntarily  pays  the  legacy  over  within  the  year,  or  invests  it 
specifically  for  the  legatee's  benefit,  or  pays  it  into  court  and 
the  court  orders  the  money  specially  invested,  the  interest, 
profits,  and  income  thereafter  accruing  will  belong  to  such 
legatee.^ 

After  the  expiration  of  the  year,  interest  is  generally 
allowed  to  pecuniary  legatees  from  whom  payment  is  with- 
held ;  and  especially  does  this  hold  true  where  it  appears  that 
the  executor  has  all  the  time  had  the  means  in  his  hands 
wherewith  to  pay  the  legacy.*  And  interest  will  run  in  the 
legatee's  favor  thenceforth,  even  though  no  demand  has  been 
made  upon  the  executor  for  the  legacy.^  There  are  cases 
which  seem  to  lay  stress  upon  the  executor's  opportunity  to 
pay  over  and  his  delinquency  in  failing  to  do  so  at  the  proper 
time;^  as  where  the  validity  of  the  will  was  in  litigation,  or 
the  grant  of  letters  testamentary  was  justifiably  delayed,  or 
the  legatee  himself  interposed  obstacles,  or  assets  sufficient 
were  not  then  available.  Yet  the  usual  rule,  English  and 
American,  has  been  that  pecuniary  legacies  bear  interest 
from  the  time  when  they  become  vested  and  payable  under 
legal  rules  or  the  express  terms  of  the  will,  provided  the 
estate  be  ever  in  a  condition  to  satisfy  them,  and  notwith- 
standing the   delay  was  occasioned   on   the  legatee's    part.'' 

1  Pearson  v.  Pearson,  i   Sch.  &  Lef.  ^  See  State  v.  Adams,  71  Mo.  620. 
10,  per  Lord  Redesdale.  '  Wms.  Exrs.  1427;  Kent  v.  Dunham, 

2  Shirt  V.  Westby,  16  Ves.  393;  Clark  106  Mass.  586;  Smith  v.  Field,  6  Dana, 
V.  Sewell,  3  Atk.  96;  Way  v.  Priest,  87  361;  Fowler  z/.  Colt,  25  N.J.  Eq.  202. 
Mo.  180.  In  Lyon  v.  Magagnos,  7  Gratt.  377,  the 

8  Maxwell  v.  Wettenhall,  2  P.  Wms.  legatee  died  shortly  after  the  testatrix, 

27;  Wms.  Exrs.  1424,  1427;  Sullivan  v.  and  there  was  no  administration  on  his 

Winthrop,  i  .Sumner,  I.  estate  for  twelve  years;  and  yet  interest 

*  Wood  z'.  Penoyre,  13  Ves.  326,  and  was  held    to    be    payable.      ."Vnd    Lord 

other  cases  cited  supra.  Redesdale,    in    Pearson    v.    Pearson,   i 

^  Wms.     Exrs.    1427,   and    Perkins's  Sch.  &  Lef.  10,  mentions  a  case  where 

note;   Birdsall  v.  Hewlett,  l   Paige,  32.  the  fund  did  not  come  to  be  disposable 


§  482 


EXECUTORS    AND    ADMINISTRATORS.  [PART    V. 


And,  if  the  executor  has  sufficient  assets,  he  must  pay  interest 
to  legatees  from  the  end  of  the  twelve  months  whether  the 
assets  have  been  productive  or  not,^  all  intermediate  profit,  if 
received,  going  to  swell  the  general  bulk  of  the  estate.^ 


§  482.  Interest  on  Legacies  to  Children,  Widow,  etc.  ;  and 
other  Special  Instances.  —  To  the  rule  for  delaying  a  reckon- 
ing of  interest,  well-settled  exceptions  exist  in  favor  of  young 
offspring  not  otherwise  provided  for ;  ^  or  so  as  to  give  cor- 
responding support  to  a  widow  ;  or  where  in  consideration  of 
her  release  of  dower ;  or  so  as  to  pursue  special  directions 
of  the  testator,*  as  where  he  gives  a  fund  in  trust  to  the  sup- 
port and  maintenance  of  his  legatee.^ 


for  the  payment  of  legacies  till  nearly 
forty  years  after  the  death  of  the  testa- 
tor, and  yet  the  legacies  were  held  to 
bear  interest  froni  the  year  after  the 
testator's  death. 

^  Pearson  v.  Pearson,  i  Sch.  &  Lef. 
ID.  For  the  rule  as  to  compounding 
interest  in  case  of  delay,  see  Wms.  Exrs. 
1433;  2  P.  Wms.  26;  106  Mass.  586; 
post.  Part  VII.  Interest  may  be  charged 
by  way  of  penalty  upon  the  representa- 
tive himself,  where  the  fault  of  delay  is 
his  own.  We  have  seen  that  the  benefi- 
ciary of  income  is  entitled  to  income  as 
computed  from  the  testator's  death. 
Supra,  §  479.  But,  as  to  a  legacy  in 
the  shape  of  an  annuity,  interest  is  not 
usually  computable  on  an  instalment 
until  the  first  twelve  months  have 
elapsed.  Those  entitled  to  income  or 
annuity  are  usually  entitled  to  regular 
payments  after  the  first  year,  reckoning 
back,  but  not  to  interest  upon  income 
thus  regularly  paid.  See  Wms.  Exrs. 
1428;   8  Hare,  120. 

The  English  chancery  rule  computes 
the  rate  of  interest  payable  on  a  legacy 
at  four  per  cent. ;  unless  the  rate  should 
be  increased,  or  interest  compounded, 
because  of  the  representative's  breach 
of  trust  or  culpable  neglect.  Wms. 
Exrs.  1432,  1433;  Part  VII.,  post.  In 
the  United  States  the  rate  fixed  may  be 
greater.     27  N.  J.  Eq.  492. 


2  See  7oIowa,  368;   §  469. 

^  Harvey  v.  Harvey,  2  P.  Wms.  21; 
Brown  w.  Temperly,  3  Russ.  263;  Mar- 
tin V.  Martin,  L.  R.  i  Eq.  369;  William- 
son V.  Williamson,  6  Paige,  298;  Wms. 
Exrs.  1429;  Magoffin  v.  Patton,  4 
Rawle,  113.  This  rulfe  is  enforced, 
even  though  the  will  should  expressly 
direct  an  accumulation  of  the  income. 
Mole  V.  Mole,  i  Dick.  310. 

*  I  Beav.  271  ;  Williamson  v.  Wil- 
liamson, 6  Paige,  298.  But  see  2  Penn. 
St.  221.  A  legacy  payable  at  a  future 
fixed  date,  or  on  a  future  contingency, 
carries  no  interest  in  such  legatee's 
favor,  as  a  rule,  until  the  date  arrives 
or  the  contingency  happens.  Wms. 
Exrs.  1428.  But  where  the  payment  of 
a  legacy  is  postponed  to  a  future  period, 
and  the  will  directs  that  when  that 
period  arrives  payment  shall  be  made 
with  interest,  the  legacy  bears  interest 
from  the  end  of  the  year  after  the  testa- 
tor died.  Knight  v.  Knight,  2  Sim.  & 
Stu.  792;  2  Wms.  Exrs.  1430.  Com- 
pound interest  on  the  legacy  will,  if 
directed,  be  allowed  the  legatee.  Arnold 
V.  Arnold,  I  My.  &  K.  365 ;  Wms.  Exrs. 
1432,  1433;  Treves  v.  Townshend,  i 
Bro.  C.  C.  386;  Williams  v.  Powell,  15 
Beav.  461. 

5  Townsend's  Appeal,  106  Penn.  St. 
268. 


588 


CHAP.  IV.]   PAYMENT  AND  SATISFACTION  OF  LEGACIES.   §  484 

§  483.  To  Whom  Legacies  should  be  paid;  Deceased  Lega- 
tees ;  Infants,  Insane  Persons,  etc.  —  The  executor  i.s  bound  to 
pay  each  legacy  to  the  person  entitled  to  receive  it,  or  to  his 
proper  legal  representative.  If  the  legatee  has  deceased 
since  the  testator,^  his  executor  or  administrator  is  the  proper 
representative  ;  and  an  appointment  may  be  needed  accord- 
ingly for  the  express  purpose  of  discharging  such  payment. ^ 
Where  the  legatee  is  an  infant,  the  parent  or  natural  guar- 
dian of  the  child  should  not  be  paid,  nor  the  child  himself, 
but  the  child's  probate  or  chancery  guardian  duly  appointed 
and  qualified.^  Where,  too,  the  legatee  is  insane,  the  quali- 
fied guardian  or  committee  of  such  insane  person  is,  in 
American  probate  practice,  the  proper  person  to  receive  the 
legacy.*  An  equal  distribution  among  all  of  a  class  should 
be  made  where  the  will  so  desi<2:nates.^ 


§  484.  To  whom  Legacies  should  be  paid ;  Absentees,  Per- 
sons not  known,  etc.  —  Aside  from  legislation  expressly  pro- 
viding for   the   case   of   absentees,^  the  executor  may  find 


^  If  the  legatee  dies  before  the  tes- 
tator, the  legacy  usually  lapses.  See 
supra,  §  467;  Jones  v.  Letcher,  13  B. 
Mon.  363;    13  Phila.  406. 

^  In  English  chancery  practice,  where 
a  legatee  of  a  residue  less  than  £20  has 
died,  and  has  no  personal  representative, 
distribution  among  his  next  of  kin  is  per- 
mitted without  requiring  administration 
to  be  taken  out.  2  Hemm.  &  M.  32. 
But  see  generally  as  to  requiring  ad- 
ministration, supra,  §  91. 

3  Schoul.  Dom.  Rel.  3d  ed.  §  302; 
Dagley  v.  Tolferry,  i  P.  Wms.  285; 
Miles  V.  Boyden,  3  Pick.  213;  Genet  v. 
Tallmadge,  i  Johns.  Ch.  3;  Quinn  v. 
Moss,  12  .Sm.  &  M.  365;  I  Dem.  160. 
Letters  of  probate  guardianship  often 
issue  in  American  practice  because  some 
legacy  or  distributive  share  vests.  But 
English  chancery  guardianship  is  so 
costly,  that,  under  stat.  36  Geo.  III.  c.  52, 
§  32,  the  executor  is  nermitted  to  pay 
such  legacies  into  the  Hank  of  England 
in  various  cases.  See  Wms.  Exrs.  1406- 
1408;   31  Beav.  48. 


*  Schoul.  Dom.  Rel.  3d  ed.  §  293. 
As  to  married  women,  the  common-law 
rule  has  now  so  completely  changed, 
that,  in  general,  only  the  wife  herself  can 
receipt  for  her  separate  legacy,  and  it 
cannot  be  paid  to  her  husband.  See 
Schoul.  Hus.  &  Wife, /awzw. 

^  Rollins  V.  Rice,  59  N.  H.  493. 

Testator  gave  E.  $25,000,  and  ordered 
that  $8,000  of  said  sum  he  paid  over  to 
T.  when  T.  should  arrive  at  the  age  of 
twenty-one;  held,  that  the  executor 
must  pay  the  whole  to  E.,  who  became 
T.'s  trustee.  Denton,  Re,  102  N.  Y. 
200. 

^The  English  statute,  36  Geo.  III. 
c.  52,  §  32,  permits  legacies  uf  absentees 
"  beyond  the  seas "  to  be  turned,  like 
those  of  infants,  into  the  Bank  of  Eng- 
land. See  Wms.  Exrs.  1407,  1421.  And 
see  Birkett,  Re,  L.  R.  9  Ch.  D.  576. 
American  statutes,  somewhat  corre- 
sponding in  tenor,  may  be  found  ;  but 
our  legislation  is  usually  with  reference 
rather  to  unclaimed  balances  in  an  ad- 
ministrator's hands.     See  next  chapter. 


589 


§  485  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

himself  embarrassed  with  respect  to  legacies  which  are  nom- 
inally payable  to  persons  who,  in  fact,  have  long  been  absent 
and  missing,  and  cannot  with  certainty  be  pronounced  alive 
or  dead.  Probate  courts  have  no  inherent  jurisdiction  of 
questions  pertaining  to  the  payment  of  legacies.  The  ex- 
ecutor's better  course,  when  left  with  legacies  in  his  hands 
awaiting  unknown  claimants,  appears  to  be,  in  the  absence  of 
positive  statute  direction,  to  trust  himself  to  the  guidance  of 
chancery,  investing  or  disbursing  the  fund  as  that  court  may 
require.  Where  a  legatee  has  been  long  absent,  sixteen  years 
or  more,  without  being  heard  from,  chancery  has  presumed 
death,  in  various  in.stances  ;  directing,  it  may  be,  that  those 
entitled  in  such  contingency  to  the  legacy,  should,  upon  its 
receipt,  furnish  security  to  refund  in  case  the  legatee  should 
ever  return.^ 

§485.  To  whom  Legacies  should  be  paid;  Testamentary- 
Trustees,  etc.  —  If  the  bequest  be  to  one  person  for  the  benefit 
of  others,  or  with  directions  to  expend  the  fund  for  the  use 
of  others,  either  generally,  or  in  a  particular  mode,  the  ex- 
ecutor may  safely  make  payment  to  such  person,  as  trustee, 
without  reference  to  the  parties  beneficially  interested.^  It 
is  customary  in  modern  wills  for  the  testator  to  name  trus- 
tees who  shall  hold  funds  bequeathed  for  the  benefit  of  others, 
or  for  special  purposes,  such  as  charity,  and  wherever  a  full 
legal  title  in  the  beneficiary  is  suspended. 

Testamentary  trustees,  in  American  practice,  must  qualify 
and  receive  letters  from  the  probate  court  before  they  are 
empowered  to  act ;  nor  should  an  executor  place  the  trust 
fund  in  their  hands  until  they  have  conformed  to  statute.'^ 
Even  though  the  same  person  be  constituted  executor  and 
trustee  under  the  will,  he  must  procure  his  credentials  as 
trustee  in  due  form,  as  preliminary  to  holding  and  managing 
the  fund  in  his  new  capacity.*     Where  the  testator  omits  to 

^  Dixon  V.  Dixon,  3  Bro.  C.  C.  510;     ton,   3   Bro.    C.   C.    96;    Robinson    v. 
Bailey  v.  Hammond,  7  Ves.  590;  Wms.     Tickell,  8  Ves.  142;   supra,  §  472. 
Exrs.    1420.      See    Lewes'   Trusts,  Re,         ^  Newcomb     v.     Williams,     9     Met. 
L.  R.  II  Eq.  236.  535. 

^  2  Schoul.  Wills;  Cooper  v.  Thorn-        *  See   Miller  v.  Congdon,   14  Gray, 

114. 


CHAP.  IV.]   PAYMENT  AND  SATISFACTION  OF  LEGACIES.   §  486 

name  a  trustee,  or  the  trustee  named  is  disqualified,  or  declines 
to  act,  or  a  vacancy  afterwards  occurs  from  any  cause,  pro- 
ceedings may  usually  be  had,  in  American  practice,  for  fill- 
ing  the  office  by  probate  appointment.*  But  where  personal 
property  is  given  in  trust,  the  executor  should  protect  and  pre- 
serve the  property  until  a  trustee  has  been  appointed.^ 

§  486.  Delivery  of  Specific  Legacies ;  Legatee's  Right  to  se- 
lect. —  Specific  things  bequeathed  should  be  identified  and 
delivered  to  the  respective  legatees,  as  directed  by  the  will. 
Where  the  testator  bequeaths  a  number  of  things,  out  of  a 
larger  number  belonging  to  him,  — as  in  a  bequest  of  "  ten  of 
the  horses  in  my  stable,"  —  it  is  held  that  the  legatee  has  a 
right  of  selection  from  the  number.^  But  where  the  entire 
fund  is  bestowed  in  parcels,  to  be  divided  among  different 
legatees,  such  individual  selection  would  be  impracticable.* 


^  See  local  statutes  as  to  appointing 
testamentary  trustees.  Smith  Prob. 
Pract.  90-93;  also  Lord  Alvanley  in 
Cooper  V.  Thornton,  3  Bro.  C.  C.  96; 
Wms.  Exrs.  1796.  If  a  legacy  is  given 
in  trust,  no  person  being  named  as 
trustee,  it  may  be  incumbent  on  the 
executor  as  such  to  administer  the  same 
according  to  the  provisions  of  the  will. 
Groton  v.  Ruggles,  17  Me.  137.  Where, 
however,  the  testator  appointed  one  to 
be  his  sole  executor,  and  bequeathed  to 
him  "  his  executor  and  trustee,"  his 
property  in  trust,  the  offices  of  executor 
and  trustee  are  distinct,  and  must  not  be 
blended.  Wheatley  v.  Badger,  7  Penn. 
St.  459.  And  see  supra,  §  472.  As  to 
transferring  from  one  capacity  to  the 
other  where  the  same  person  is  executor 
and  trustee,  see  supra,  §  247  ;  Wms. 
Exrs.  1399,  and  Perkins's  note. 

It  may  happen  that  a  particular  fund 
or  the  residue  of  the  estate  is  to  be  in- 
vested in  good  and  productive  securities, 
and  held,  by  the  true  intendment  of  the 
will,  in  trust  by  the  executor  himself, 
for  purposes  of  accumulation;  or,  so  as 
to  pay  out  income  only,  until  some  pre- 
scribed period  has  elapsed,  or  a  certain 
contingency  happened;   whereupon  the 

59 


principal  shall  be  paid  by  him  to  the 
person  or  persons  ultimately  entitled 
thereto  under  the  will,  or  in  default  of 
such  ultimate  disposition,  to  those  enti- 
tled under  statutes  of  distribution  in 
case  of  intestacy.  See  Carson  v.  Car- 
son, 6  Allen,  299;  Miller  v.  Congdon, 
14  Gray,  114.  However  unusual  in 
extent  and  character  may  be  the  func- 
tions thus  exercised  by  him,  the  executor 
is  bound  to  a  just  and  rightful  perform- 
ance; and  his  official  bond,  though  ex- 
pressed after  the  ordinary  tenor,  stands 
as  security  that  the  obligations  he  has 
incurred  shall  be  faithfully  performed 
in  all  respects.  Wms.  Exrs.  1399,  and 
Perkins's  note;  Dorr  v.  Wainwright,  13 
Pick.  328;  Sheet's  Estate,  52  Penn. 
St.  257;  Lansing  v.  Lansing,  45  Barb. 
182. 

2  As  where  the  trustee  named  refuses 
to  serve,  and  there  is  delay  in  appointing 
another.  Casperson  v.  Dunn,  42  N.  J. 
Eq.  87,  §  248. 

3  Jacques  v.  Chambers,  2  Col.  435 ; 
Wms.  Exrs.  1440. 

*  In  such  case  the  legatees  may  well 
abide  by  the  executor's  selection,  if  they 
cannot  agree;  but,  otherwise,  equity 
must  decide.     lb. 

I 


5  488 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


The  direction  of  the  will  as  to  such  legacies  should  be  fol- 
lowed.^ 

§  487.  Method  of  paying  General  Legacies  ;  Currency,  etc.  — 
The  presumption  is  that  general  legacies  shall  be  paid  in  law- 
ful money .2  But  a  testator  may  require  any  general  legacy 
to  be  paid  in  a  particular  currency  or  coin,  or  in  specified 
securities  or  property.^  In  either  case  an  executor  does  not 
discharge  himself  when  he  turfis  over  worthless  or  desperate 
securities  by  imposing  on  the  young  or  inexperienced.*  Debt 
lies  to  recover  a  legacy  on  a  decree  of  the  probate  court 
in  our  local  practice.^ 

§  488.  Assent  of  the  Executor  to  a  Legacy.  —  The  theory  of 
our  law  is,  that  the  title  of  a  legatee,  whether  specific  or  gen- 
eral, does  not  become  complete  and  perfect,  until  the  execu- 
tor assents  to  the  legacy.^  But,  as  an  executor's  wishes  are 
not  to  control  those  of  his  testator,  the  object  of  the  require- 
ment appears  to  be  nothing  more  than  to  await  the  executor's 
reasonable    convenience.      Consequently,   a   legatee    has    no 

1  Where  a  testatrix  gave  her  son  one     after   one   year,  he   should   invest   the 


undivided  tenth  of  her  estate,  with  the 
provision  that  it  should  be  indorsed  on 
a  certain  note  which  he  owed  her 
daughter,  the  executor  was  held  bound 
to  appropriate  the  legacy  to  the  payment 


amount  or  else  pay  it  into  court  to  be 
invested.  Lyon  v.  Magagnos,  7  Gratt. 
377;   supra,  §  323.      And  see  60  N.  H. 

377- 

A  legatee  or  distributee  may,  if  sui 


of  such   note,  and   to   pay   the   residue  juris,  receipt   and   release    for  what   is 

only,  if  any,  to   the    legatee.     Low   v.  due  him.     As  to  taking  the  fiduciary's 

Low,  77  Me.  171.  own  note  for  the  amount,  see  Lawton 

"^  Rates  of  exchange  in  payments  will  v.  Fish,  51  Ga.  647;   9  N.  J.  Eq.  314. 

be  reckoned  accordingly.     Wms.  Exrs.  As  to  form  of  decree  for  distribution  of 

1433-1435;   Lansdowne  v.  Lansdowne,  a  legacy  where  there  is  a  doubt  con- 

2  Bligh,  91 ;    Bowditch   v.   Soltyk,  99  cerning  the  person  entitled,  see  3  Dem. 

Mass.  136;   Yates  v.  Maddan,  16  Sim.  282. 


*  I  Dem.  568.     See  also  Coddington 
V.  Stone,  36  N.  J.  Eq.  361;    lOi  N.  Y. 

3"- 

^  Weeks  v.  Sowles,  58  Vt.  696.     See 
§488. 

«  Wms.  Exrs.  1372;  Northey  v. 
Northey,  2  Atk.  77;  Nunn  v.  Owens, 
2  Strobh.  loi;  2  Schoul.  Wills;  Re- 
the  legacy.  Thompson  v.  Youngblood,  feld  v.  Belette,  14  Ark.  148;  Lott  v. 
I  Bay  (S.  C.)  248;  Hemphill  v.  Moody,  Meacham,  4  Fla.  144;  Crist  v.  Crist,  i 
62  Ala.  510.  Yet,  as  the  executor  must  Ind.  570;  Finch  v.  Rogers,  11  Humph, 
be  ready  to  pay  interest  on  the  legacy     559. 

592 


613.  As  to  payment  in  "confederate 
money,"  see  79  Va.  118. 

8  Sheffield  v.  Lord  Coventry,  2  Russ. 
&  My.  317;  Banks  v.  Sladen,  I  Russ. 
&My.  216;  King  z/.  Talbot,  50  Barb.  453. 

An  executor  is  not  bound  to  search 
out  a  legatee ;  it  is  enough  if  he  is  al- 
ways ready  when   called    upon    to    pay 


CHAP.  IV.]   PAYMENT  AND  SATISFACTION  OF  LEGACIES.   §  488 

right  to  take  possession  of  his  legacy  and  exercise  full  do- 
minion over  it,  pending  administration  ;  nor  could  the  testa- 
tor himself  have  conferred  such  a  privilege  without  imperil- 
ling prior  rights.^  Even  though  the  legacy  were  of  a  specific 
chattel,  trespass,  trover,  replevin,  and  other  remedies  founded 
in  possessory  rights,  are  inappropriate  to  the  legatee's  title 
before  the  executor  has  surrendered  his  own  ;^  nor  should 
the  legatee's  sale  and  transfer  give  an  indefeasible  title  to 
the  purchaser. 

Should,  however,  the  executor  unreasonably  withhold  his 
assent  to  the  legacy,  a  court  of  equity  will  compel  him  to 
yield  it.^  Assent,  moreover,  may  be  express  or  implied,  the 
question  being  one  of  fact.*  If  the  executor  notifies  the 
legatee  that  he  is  ready  to  pay  whenever  the  legatee  calls, 
there  is  a  clear  assent ;  ^  but  not  where  he  merely  congratu- 
lates ;*^  nor  should  the  assent  of  one  who  is  named  executor 
avail  where  another  qualifies  and  administers."  A  premature 
assent  should  not  be  readily  inferred  from  doubtful  acts  or 
expressions.^ 

The  effect  of  the  executor's  assent  to  a  legacy  is,  that  the 
specific  thing  bequeathed  ceases  at  once  to  be  part  of  the 

1  Wms.  Exrs.  1372.  will  not  pass  the  legal  title  nor  bind  the 

2  Northey  v.  Northey,  2  Atk.  77;  2  estate  which  he  represents.  Gardner  v. 
Schoul.  Wills.  Gantt,  19  Ala.  666.     But  English  cases 

*  No  action  will  lie  at  law  to  recover  have  held,  relying  upon  the  older  doc- 
the  legacy  before  assent  is  given,  but  trine  so  inconsistent  with  our  modern 
equity  regards  the  executor  as  a  trustee,  legislative  policy,  that  the  executor's 
and  compels  him  to  assent  where  he  authority  being  derived  from  the  will, 
ought  to  do  so.  Lark  v.  Linstead,  2  Md.  he  may  assent  before  probate.  Wms. 
Ch.  162;    Wms.   Exrs.   1375;   Nancy  v.  Exrs.  303,  1378. 

Snell,  6  Dana,    148;  Price  v.  Nesbit,  i         "George   v.  Goldsby,    23   Ala.    326; 

Hill  Ch.  445;  Crist  v.  Crist,  i  Ind.  570.  Wms.  Exrs.  1376;   Burkhead  7'.  Colson, 

*  George  v.  Goldsby,  23  Ala.  326;  2  Dev.  &  Bat.  Eq.  77;  H2  Penn.  St. 
Refeld  v.  Belette,  14  Ark.  148;   Crist  v.  390. 

Crist,  I  Ind.  570;  Elliott  v.  Elliott,  9  M.  Should  the  legatee  have  or  gain  pos- 

&  W.  27;    Buffaloe  v.  Baugh,  12  Ired.  session  of  the  thing  bequeathed,  without 

201.  the  executor's  assent,   the  executor,   it 

5  Barnard  v.   Pumfrett,  5  My.  &  Cr.  would  seem,  may  recover  it  from  him 

70.  by  action  at  law,  in  trespass  or  trover, 

^  Wms.  Exrs.   1376,  criticising  Shep.  by  virtue  of  his  better  title.    Wms.  Exrs. 

Touchst.  456.  1374;     Mead   v.   Orrery,   3   Atk.    239; 

^  White  V.  \Vhite,  4  Dev.  &  Bat.  401.  2  Schoul.  Wills.      For,  until    after   his 

If  an  executor  assents  before  letters  tes-  assent  to  the  legacy,  the   executor  has 

tamentary  are  issued  to  him,  his  assent  not  only  a  bare  authority,  but  the  inter- 

593 


§488 


EXECUTORS    AND    ADMINISTRATORS.  [PA.RT  V. 


testator's  assets,  and  the  legal  title  of  the  legatee  thereto 
becomes  perfect ;  ^  and  this  notwithstanding  the  assets  prove 
afterwards  insufficient  to  pay  the  debts.^ 

As  to  legacies  not  specific,  the  practical  effect  of  the  ex- 
ecutor's mere  assent  appears  of  less  consequence,  as  in  the 
former  case,  to  deliver  it.  There  ensues  a  sort  of  contract 
obligation  to  pay  the  legacy,  which  obligation  may  be  en- 
forced in  equity ;  but,  unless  a  specific  fund  has  been  set 
aside  in  consequence,  nothing  can  be  identified  upon  which 
the  legatee's  legal  title  actually  attaches.^ 

Where  the  executor  is  himself  a  legatee,  assent  to  his  own 
legacy  is  needful.  And,  until  his  express  or  implied  assent 
to  the  legacy  has  been  given  in  such  a  case,  the  qualified 
executor  holds  the  specified  thing  or  fund  in  his  representa- 
tive capacity,  even  though  all  the  debts  have  been  paid  ;  far 
the  rule  is,  that  one's  assent  cannot  be  inferred  from  acts 
equally  applicable  to  the  title  of  legatee  and  executor.* 


est  in  the  thing  bequeathed.  3  Atk. 
235,  239.  In  general,  the  right  to  re- 
cover and  collect  assets  is  in  the  exec- 
utor. And  yet  retention  of  the  legacy 
for  a  considerable  time,  without  com- 
plaint by  the  executor,  may  conclude  the 
latter,  if  the  thing  or  fund  be  not  needed 
for  administration;  since  assent  may  be 
given  by  acquiescence,  and  without  an 
actual  transfer  of  possession.  Andrews 
V.  Hunneman,  6  Pick.  126;  Spruil  v. 
Spruil,  2  Murph.  175  ;  Jordan  v.  Thorn- 
ton, 7  Ga.  517;  Eberstein  v.  Camp, 
37  Mich.  176.  When  executors  die, 
after  the  debts  are  paid,  but  before  the 
legacies  are  satisfied,  their  assent  will 
sometimes  be  presumed.  Cray  v.  Willis, 
2  P.  Wms.  531  ;  Wms.  Exrs.  1377.  So 
may  the  executor's  assent  be  given  con- 
ditionally instead  of  absolutely.  Wms. 
Exrs.  1378;  Lillard  v.  Reynolds,  3  Ired. 
366.  In  short,  assent  may  be  inferred 
either  on  the  presumption  that  an  exec- 
utor meant  to  do  what  was  his  duty,  or 
from  some  act  or  expression  on  his  part 
which  recognized  the  legatee's  present 


right  to  receive  the  legacy.  See  per 
curiam  in  George  v.  Goldsby,  23  Ala. 
326.  Where  there  are  joint  executors, 
the  assent  of  one  will  suffice.  Wms. 
Exrs.  948,  1378;  Boone  v.  Dyke,  3  T. 
B.  Mon.  529.  A  setting  apart  of  cer- 
tain property  by  the  executor  alone 
amounts  to  nothing  more  than  a  mere 
mental  determination,  and  does  not  bind 
the  estate.  Sherman  v.  Jerome,  120 
U.  S.  319.  As  to  a  presumed  assent  after 
lapse  of  time,  etc.,  see  75  Ga.  285.  A 
complaint  for  allowance  of  a  legacy 
may  be  made  in  some  States  to  the  pro- 
bate court  in  the  form  of  a  claim  upon 
the  estate.  97  Ind.  289.  And  see  §  487. 

1  Nancy  v.  Snell,  6  Dana,  148. 

2  lb. 

3  Andrews  v.  Hunneman,  6  Pick.  129; 
Wms.  Exrs.  1372;  Dunham  v.  Elford, 
13  Rich.  Eq.  190. 

*  Doe  V.  Sturges,  7  Taunt.  223;  Com. 
Dig.  Adm.  6;  Wms.  Exrs.  1382.  See 
Murphee  v.  Singleton,  37  Ala.  412.  As 
to  dispensing  with  assent,  see  2  Sm.  & 
M.  527. 


594 


CHAP.   IV.]       PAYMENT  AND  SATISFACTION  OF  LEGACIES.       §  49O 

§  489.  Legatee's  Assent  to  the  Legacy.  — There  is  another 
element  in  the  acquisition  of  title  to  a  legacy  :  namely,  the 
legatee's  assent.  A  will  being  once  established  in  probate, 
each  legatee  is  readily  presumed  to  assent  to  his  own  legacy, 
whether  larger  or  smaller  than  what  he  might  reasonably 
have  expected.  Yet  the  legatee's  assent  to  his  legacy  is  a 
legal  pre-requisite  to  the  completion  of  the  gift  ;  for  no  one  can 
be  made  the  beneficiary  of  another  against  his  own  wish  ;  and, 
where  a  bequest  is  coupled  with  onerous  conditions  or  trusts, 
as  in  various  instances  of  charity,  or  some  public  corporation 
is  legatee,  a  formal  acceptance  or  assent  will  often  precede 
with  propriety  the  payment  or  delivery  by  the  executor.  The 
simple  bequest  to  an  individual,  however,  is  usually  assumed 
to  have  been  accepted  unless  positively  declined ;  and  an 
actual  acceptance,  without  reservation,  of  the  money  or  specific 
thing  bequeathed  concludes  the  matter.  Should  the  legatee 
refuse  to  accept,  and  disclaim  all  title  to  the  legacy,  his 
refusal  or  relinquishment  given  siii  juris,  would  operate  to 
divest  his  interest,  and  subject  the  property  thus  bequeathed 
to  distribution  as  in  the  case  of  intestacy.^ 

§  490.  Abatement  of  Legacies  in  Case  of  Deficient  Assets. 
—  Next  in  order,  after  collecting  the  assets  and  paying  or 
providing  for  the  due  adjustment  of  all  valid  debts,  claims, 
and  charges  against  his  testator's  estate,  an  executor  naturally 
regards  the  delivery  of  specific  legacies  ;  for  these  are  not  to 
be  abated  under  ordinary  circumstances,  being  answerable  for 
debts  only  as  a  last  resort,  and  for  general  legacies  scarcely 
at  all.2  If,  however,  the  will  creates  exceptional  conditions, 
as  where  general  legacies  are  made  an  express  charge  upon 
the  specified  legacies  or  upon  the  personal  property,  and  there 
is  no  other  fund  which  can  satisfy  such  bequests,  the  rule  is 

1  Walker  v.  Bradbury,  15  Me.  207.  in  toto  of  what  the  testator  has  be- 
Where,  of  cumulative  bequests  to  the  queathed  to  him.  Talbot  v.  Radnor, 
same  person,  one  is  onerous  and  the  3  My.  &  K.  254.  But  the  intention  of 
other  beneficial,  the  legatee  cannot  ac-  the  testator  expressed  in  the  will  con- 
cept one  and  reject  the  other;  nor,  of  trols  the  question.  Long  v.  Kent,  II 
course,  can  a  legacy  be  accepted  apart  Jur.  N.  s.  824;  Wms.  Kxrs.  1448. 
from  its  essential  restrictions;  there  ^  Wms.  Exrs.  1359,  1360. 
must  be  acceptance  in  toto  or  rejection 

595 


§  490  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

different. 1  Legacies,  by  a  suitable  construction  of  the  will, 
may  be  charged,  sometimes,  upon  the  testator's  land.^ 

So  long  as  there  remain  assets  not  specifically  bequeathed 
to  appropriate  to  legal  debts  and  charges  against  the  estate, 
specific  bequests  cannot  be  disturbed,  though  general  lega- 
cies be  swallowed  up  ;  it  is  only  when,  the  residuary  and  other 
general  legacies  sacrificed,  nothing  remains  of  the  personal 
estate  for  satisfying  legal  debts  and  charges  but  what  was 
specifically  bequeathed,  that  specific  and  demonstrative  lega- 
tees can  be  compelled  to  contribute  ;  and,  in  such  case,  abate- 
ment shall  be  proportioned  to  the  value  of  their  respective 
legacies.^ 

General  legacies  rank  together ;  so  that  whatever  remains 
over  and  above  satisfying  the  legal  debts,  demands,  and 
charges  against  the  estate  and  specific  legacies,  must  be  ap- 
plied to  general  legacies  in  proportion  to  their  amount,  until 
they  are  fully  paid.*  It  follows,  that  where  the  estate  is 
scarcely  enough,  or  less  than  enough,  to  pay  such  general 
legatees  in  full,  the  residuary  legatee  must  be  *the  sufferer.^ 


1  Prec.  Ch.  393;  White  v.  Green,  l  deficiency,  this  order  may  be  varied 
Ired.  Eq.  45;  25  N.  Y.  128.  Demon-  considerably,  by  explicit  language  in 
strative  legacies  have  a  presumed  secu-  the  will,  giving  precedence  out  of 
rity  for  their  payment,  and  do  not  abate  course  to  a  particular  legacy.  Lewin 
with  general  legacies.  Supra,  §  461 ;  v.  Lewin,  2  Yes.  Sen.  415;  Marsh  v. 
4  Yes.   150;   Creed  v.  Creed,  11  CI.  &  Evans,  i  P.  Wms.  668. 

Fin.  509.  4  2  Schoul.  Wills  (in   preparation); 

2  McCorn  v.  McCorn,  100  N.  Y.  511.  Wms.  Exrs.  1359;   78  Me.  233;   MoUan 
^  Barton  v.  Cooke,  5  Yes.  461 ;  Sleech  v.  Griffith,  3  Paige,  402. 

V.  Thorington,  2  Yes.  Sen.  561  ;  Wms.  *  lb.      Where    the    testator    appears 

Exrs.  1371;   2  Schoul.  Wills.     The  doc-  not  to  have  contemplated  the  possible 

trine  of  marshalling  assets  is  specially  failure   of  assets  sufficient  to  meet  the 

considered  in  connection  with  the  charge  legacies  named,  the  presumption  of  in- 

or  exoneration  of  real  estate;    but  as  to  tended  equality  prevails  between  general 

personalty  generally,  regarded  as  assets  legatees,   as   to   meeting  all    deficiency, 

for  debts  and  legacies,  and  where  the  Emery  v.  Batchelder,  78  Me.  233.     An 

will  has  made  no  express  directions  to  indiscriminate  residuary  bequest  of  re- 

the  contrary,  a  deficiency  of  assets  is  to  alty  and  personalty  charges  the  whole 

be  made  up,  by  charging  these  classes  with  the  payment  of  prior  legacies.     61 

in     order:      (i)     Residuary     legacies;  Miss.  372. 

(2)  general  legacies,  with  the  exception  The    usual    priority    among    legatees 

of   (3)  legacies   given    for   a   valuable  may  be  varied  by  the  special  directions 

consideration;      (4)    specific    and    de-  of  the  will.     See  Dey  v.  Dey,  4  C.  E. 

monstrative   legacies.     We  apprehend,  Green,    137;    Lewin  v.   Lewin,  2  Yes. 

however,   that,   as   concerns    a    partial  Sen.  415;   Marsh  v,  Evans,  i  P.  Wms. 

596 


CHAP.   IV.]       PAYMENT  AND  SATISFACTION  OF  LEGACIES.       §  49 1 

But  pecuniary  legacies,  or  those  upon  a  meritorious  considera- 
tion, are  preferred  to  other  general  legacies.^ 

§  491.   The  Refunding  of  Legacies  after  their  Payment.  —  The 

general  rule  appears  to  be  well  settled,  that  after  the  execu- 
tor has  once  voluntarily  paid  a  legacy  without  reservation,  he 


668;  Brown  v.  Brown,  i  Keen,  275; 
Haynes  v.  Haynes,  3  De.  G.,  M.  &  G. 
590;  Towle  V.  Swasey,  106  Mass.  100. 
Local  statutes,  too,  may  be  found  to 
modify  the  rule.  See,  as  to  a  post-tes- 
tamentary child,  5  Paige,  588. 

^  Legacies  given  for  a  valuable  con- 
sideration are  preferred  to  other  general 
legacies,  when  abatement  is  necessary, 
because,  doubtless,  of  their  quasi  obli- 
gatory character.     Burridge  v.  Bradyl, 

1  P.  Wms.  127;  Ambl.  244;  Blower  z'. 
Morret,  2  Ves.  Sen.  420 ;  Norcott  v. 
Gordon,  14  Sim.  258;  Wms.  Exrs.  1364; 

2  Schoul.  Wills;  Wood  v.  Vanden- 
burgh,  6  Paige,  277;  Clayton  v.  Akin, 
38  Ga.  300;  Pollard  v.  Pollard,  i  Allen, 
490.  It  might  be  thought  that,  regarded 
as  debts,  they  should,  to  the  extent  of 
the  consideration,  and  not  farther,  rank 
above  all  legacies,  even  specific  ones; 
but  courts  do  not  appear  to  apply  this 
preference  with  so  nice  a  sense  of  jus- 
tice; and,  on  the  one  hand,  specific 
legacies  will  take  full  precedence,  while, 
on  the  other,  as  among  general  lega- 
cies, these  have  been  excepted  to  their 
full  amount,  even  though  the  bequest 
should  exceed  the  value  of  its  actual 
consideration.  Towle  v.  Swasey,  106 
Mass.  106;  Ambl.  244.  Among  gen- 
eral legacies  thus  privileged,  are  those 
given  in  consideration  of  a  debt  actually 
owing  to  the  legatee,  or  of  the  relin- 
quishment of  a  widow's  dower.  Bur- 
ridge V.  Bradyl,  and  other  cases  cited 
supra  ;  Borden  v.  Jenks,  140  Mass. 
562.  It  is  essential,  however,  to  this 
privilege,  that  the  consideration  should 
subsist  at  the  testator's  death;  and, 
hence,  legacies  given  to  creditors  whose 
claims  had  been  compounded  and  re- 
leased  during   the   life  of  the  testator, 


Davies  v.  Bush,  i  Younge,  341 ;  Coppin 
Z'.  Coppin,  2  P.  Wms.  29 1;  or  provis- 
ions nominally  in  lieu  of  dower,  where 
the  testator  has  left  no  dowable  lands, 
are  voluntary  merely.  Acey  v.  Simpson, 
5  Beav.  35;  L.  R.  3  Ch.  D.  714.  And 
the  same  may  be  said  of  a  legacy  given 
to  pay  off  another  person's  debts.  Shirt 
V.  Westby,  16  Ves.  396.  The  merito- 
rious object  of  a  voluntary  bequest, 
moreover,  will  not  entitle  it  to  pre- 
eminence above  other  general  legacies 
given  by  way  of  bounty;  and,  aside 
from  provisions  which  properly  defray 
the  incidental  expenses  of  funeral  and 
administration,  legacies  given  for  mourn- 
ing rings,  or  to  recompense  executors 
for  their  care  and  trouble,  are  lialile  to 
abatement  in  the  usual  proportion. 
Apreece  v.  Apreece,  i  Ves.  &  B.  364; 
P'retwell  v.  Stacy,  2  Vern.  434;  Duncan 
V.  Watts,  16  Beav.  204;  Wms.  Exrs. 
1366.  In  American  States,  however, 
where  compensation  is  regularly  allowed 
to  executors  for  their  services,  a  legacy 
given  by  way  of  recompense  might,  per- 
haps, be  pronounced  a  legacy  upon  valid 
consideration  ;  but,  even  were  it  abated, 
the  executor  would  not  be  thereby  de- 
barred, we  presume,  from  receiving  his 
full  compensation  on  the  usual  footing 
of  such  officials.  See  Part  VII.,  c.  2, 
on  this  point.  The  report,  in  I  P. 
Wms.  423,  appears  to  sanction  the  ex- 
emption of  a  legacy  left  for  building 
a  monument  to  the  memory  of  a  rela- 
tion ;  but  there  is  here  some  error.  See 
Wms.  Exrs.  1366,  and  note;  I  Bro.  C.  C. 
390;  6  Paige,  277.  Legacies  to  servants, 
or  for  charities,  cannot  claim  prece- 
dence. Attorney  General  v.  Robins,  2 
P.  Wms.  25;   Wms.  Exrs.  1366. 


597 


§  49 1  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

cannot  at  discretion  force  the  legatee  to  refund. ^  Where, 
however,  the  assets  are  found  deficient  for  meeting  the  law- 
ful debts  and  charges,  the  executor  may,  by  a  bill  in  equity, 
compel  legatees  to  refund  what  may  have  been  already  over- 
paid to  them ;  ^  though  equity  will  not  make  legatees  refund 
for  the  sake  of  repairing  losses  occasioned  by  the  executor's 
waste  ;^  nor  while  unappropriated  assets  remain  for  adminis- 
tration purposes.^ 

Creditors  cannot,  however,  be  debarred  of  their  prior  rights 
by  the  executor's  imprudence  or  misconduct,  but  may  in  all 
cases  pursue  assets  into  the  hands  of  legatees,  where  their 
own  lawful  demands  remain  unsatisfied ;  and  the  satisfied 
legatee,  whether  paid  by  the  executor  voluntarily  or  under 
the  sanction  of  chancery,  may,  by  chancery,  be  compelled  to 
refund.^  Where  chancery  has  administered  the  fund,  how- 
ever, a  particular  legatee  may  be  required  to  refund  only  his 
proportionate  share.^  And  it  would  appear  consistent  with 
our  American  probate  practice  to  cause  unsatisfied  creditors, 
where  the  deficiency  was  occasioned  by  malad^ministration, 
to  exhaust  their  remedies  first  against  the  executor  or  admin- 
istrator and  the  sureties  on  his  official  bondJ 

As  among  legatees,  moreover,  no  one  of  them  shall  be 
allowed  an  unjust  precedence,  because  of  an  executor's 
favor  or  misapprehension,  where  the  assets  were  not  origi- 
nally sufficient,  in  fact,  to  pay  all  in  full ;  but  in  such  case 
equity  will  compel  the  legatees  thus  overpaid  to  contribute 


1  Orr   V.   Kaines,   2  Ves.   Sen.    194;  imprudence.     Harkins   v.    Hughes,    60 
Coppin  V.  Coppin,  2  P.   Wms.  296;    5  Ala.  316. 

Cranch,   C.   C.    658;   2  Schoul.   Wills;  *  I    La.   Ann.    214.     The   executor's 

Wms.  Exrs.  1450.     Local  statutes  some-  prudent  course  is  to  take  a  refunding 

times  change  this  rule.  bond  from  legatees,  as  against  claims 

2  Wms.  Exrs.  1451;  I  Chanc.  Cas.  which  may  afterwards  be  presented 
136;  Davis  V.  Newman,  2  Rob.  (Va.)  within  the  time  allowed  by  law;  unless 
664.  The  executor  should  come  into  the  estate  is  ample.  Supra,  §  478. 
the  court  "  with  clean  hands,"  if  he  ex-  ^  Wms.  Exrs.  1451;  i  Vern.  162; 
pects  equity  to  aid  him.  See  77  N.  C.  March  v.  Russell,  3  My.  &  Cr.  31; 
357.  Davies  v.  Nicholson,  2  De  G.  &  J.  693; 

^  McClure  v.  Askew,  5  Rich.  Eq.  162.  Buie  v.  Pollock,  55  Miss.  309. 

If  he  volunteers  to  pay  legacies,  with  ^  Gillespie  v.  Alexander,  3  Russ.  130. 

full  knowledge  of  outstanding  debts,  he  '  Pyke  v.  Searcy,  4  Port.  52. 
may  have  to  bear  the  penalty  of  his  own 

598 


CHAF.   IV.J       PAYMENT  AND  SATISFACTION  OF  LEGACIES.       §  49I 

SO  as  to  make  the  whole  proportionate   abatement  what    it 
should  have  been.^ 


1  Walcott  V.  Hall,  i  P.  Wms.  495; 
Wms.  Exrs.  1452  ;  2  Schoul.  Wills; 
Gallego  V.  Attorney  General,  3  Leigh, 
450.  Otherwise,  where  assets,  origi- 
nally sufficient,  have  been  wastetl  by 
the  executor.     See  Wms.  Exrs.  1452; 

599 


2  Schoul.  Wills  ;  Evans  v.  Fisher,  40 
Miss.  644.  Trust  funds,  misapplied  and 
distributed  by  the  executor  among  lega- 
tees, may  be  recovered  by  a  bill  in 
equity.     Green  v.  Givan,  ^^  N.  V.  343. 


§  493  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


CHAPTER   V. 

PAYMENT    AND    DISTRIBUTION    OF     THE    RESIDUE. 

§  492.  Residue  of  Personal  Estate  goes  according  to  Testacy 
or  Intestacy  of  Deceased.  —  After  the  payment  of  debts  and 
(if  there  be  a  will)  of  speciiic  and  general  legacies,  the  final  duty 
of  the  executor  or  administrator  is  to  pay  over  or  deliver  what 
residue  or  surplus  of  the  assets  may  remain  to  the  person  or 
persons  duly  entitled  to  the  same.  In  case  of  testacy,  the 
residuary  legatee  or  legatees,  or,  as  the  case  may  be,  trustees 
selected  to  hold  the  residue  for  the  purposes  contemplated  by 
the  will,  are  the  proper  parties  ;  but,  where  one  died  intestate, 
the  residue  goes  to  the  person  or  persons  designated  by  law 
and  the  statute  of  distributions.  These  two  cases  we  now 
proceed  to  consider  separately. 

§  493.  I.  As  to  the  Residue  in  Case  of  Testacy. —  First,  as  to 
the  case  of  testacy.  After  an  executor  has  settled  all  lawful 
debts  and  charges  against  the  estate  which  he  represents, 
and  has  paid  or  delivered  all  the  general  and  specific  lega- 
cies according  to  the  tenor  of  the  will,  he  should  transfer 
whatever  personal  property  remains  to  the  residuary  legatee 
or  legatees  if  such  there  be.^  And  if  such  legatee  dies  after 
the  testator,  and  pending  a  final  settlement  of  the  estate,  his 
personal  representatives  will  take  the  residue  in  his  right.^ 
Subject  to  the  directions  of  the  will,  and  such  legatee's  con- 
venience, this  residuary  fund  is  turned  over  in  money  or 
other  kinds  of  personalty,  as  the  proceeds  of  a  prudent  ad- 
ministration. 


1  Wms.  Exrs.   1454;   2  Schoul.  Wills     clear  and  tangible  interest  in  the  resi- 
(in  preparation).  clue,  and  the   next   of  kin   stand,   with 

2  Brown     v.    Farndell,    Carth.    52  ;     regard  to  an  intestate  estate,  in  the  same 
Cooper  V.  Cooper,  L.  R.  7  H.  L.  53.     condition.     Cooper  v.  Cooper,  ib. 

A  residuary  legatee,  under  a  will,  has  a 

600 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.   §494 

§  494.  Right  of  the  Executor  'where  there  is  no  Residuary 
Legatee  named.  —  Formerly  it  was  contended  in  the  English 
courts,  more  out  of  favor  to  the  individual  upon  whom  the 
deceased  had  bestowed  his  confidence  than  upon  any  rational 
theory  of  interpretation,  that  if  a  testator  had  named  in  his 
will  an  executor,  but  no  residuary  legatee,  the  executor  should 
retain  the  residue  of  the  personal  estate  for  his  own  benefit, 
after  settling  all  debts  and  charges,  and  paying  whatever 
legacies  were  duly  bestowed.  For,  inasmuch  as  the  personal 
estate  had  devolved  upon  the  executor  in  the  first  instance, 
there  the  surplus  legally  remained.^  So  unsatisfactory  was  the 
doctrine,  however,  that  though  equity  gave  formal  adhesion 
to  this  common-law  rule,  they  made  exceptions  wherever  they 
might  ;2  and,  in  1830,  Parliament  declared  explicitly  that, 
for  the  future,  unless  the  will  directed  otherwise,  the  executor 
must  be  deemed,  in  all  such  cases,  a  trustee  for  the  persons 
entitled  to  the  estate  under  the  statute  of  distributions.^ 
Generally,  if  not  universally,  in  the  American  States,  the 
executor  has  been  considered  a  trustee  for  the  next  of  kin  as 
to  all  residue  in  his  hands  undisposed  of ;  and  American 
statutes  a  hundred  years  old  repudiate  the  notion  that  a  bene- 
ficial interest  should  vest  in  him  by  virtue  of  his  office.* 

The  fact,  that  the  next  of  kin  is  likewise  executor,  does  not, 
of  course,  disentitle  him  from  taking  beneficially  the  residue 


^  Attorney  General  v.  Hooker,  2   P.  be  to  put  the  burden  of  proof  on  the 

Wms.  338 ;   Urquhart  v.  King,  7  Ves.  executor  to  show  that   the   testator  in- 

288;    Wms.  Exrs.  1474,  1475.  tended    he    should    enjoy    the    residue 

2Ib. ;    Langham  v.  Sanford,  17  Ves.  beneficially.    Juler  z'.  Juler,  29  Beav.  34. 

435;    Middleton  v.  Spicer,  l  Bro.  C.  C.  But  the  statute  is  considered  to  apply 

201 ;  Taylor  v.  Haygarth,  14  Sim.  8.  only  in  cases  where  the  testator  has  left 

8  Act  II  Geo.  IV.  &  Wm.  IV.  c.  40;  next  of  kin;  and,  accordingly,  where 
Wms.  Exrs.  1476.  The  established  there  is  no  known  next  of  kin,  the  ex- 
equity  rule,  previous  to  this  act,  was  ecutor  will  take  the  residue  as  against 
that,  where  it  may  well  be  presumed  the  crown,  unless  the  intent  of  the  tes- 
that  the  testator  meant  to  confer  the  tator  to  exclude  his  executor  aflirma- 
office  without  the  beneficial  interest  in  tively  appear.  2  Coll.  648.  For  the 
the  residue,  the  executor  must  be  con-  English  decisions  under  this  statute,  see 
sidered  a  trustee  for  the  next  of  kin  of  Wms.  Exrs.  1474-1482,  and  cases  cited, 
the  testator;  or,  if  there  be  no  known  *  2  Story  Eq.  Jurisp.  §  1208;  Wms. 
kindred,  a  trustee  for  the  crown,  i  Bro.  Exrs.  1474,  and  cases  cited;  Hays  v. 
C.  C.  201 ;  Taylor  z'.  Haygarth,  14  Sim.  Jackson,  6  Mass.  149  ;  2  Schoul. 
8.     The  effect  of  this  statute  appears  to  Wills;  Wilson  v.  Wilson,  3  Binney,  557. 

601 


§  495  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

which  Otherwise  would  have  vested  in  him.^  But  a  pecuniary 
legatee's  interest  is  not  enlarged  constructively  by  his  appoint- 
ment as  an  executor.^  It  has  been  held  that  a  testator  cannot 
by  negative  words  exclude  any  or  all  of  his  next  of  kin  from 
sharing  beneficially  his  undisposed-of  residue,  but  must  give 
it  expressly  to  some  one  else,  if  he  means  to  cut  off  such 
kindred's  right  to  share. 

Where  executors  applied  to  the  court  to  construe  the  testa- 
tor's will  and  made  distribution  in  accordance  therewith,  in 
the  exercise  of  due  care  and  good  faith,  they  were  protected, 
although  it  turned  out  subsequently  that  the  court's  construc- 
tion of  the  will  was  erroneous.^ 

§  495-  II-  As  to  the  Residue  in  Case  of  Intestacy;  Statutes 
of  Distribution.  —  Secondly,  as  to  payment  or  delivery  of  the 
residue  in  case  of  intestacy.  As  the  law  of  England  anciently 
stood,  the  ordinary,  succeeding  to  the  king's  right,  himself 
appropriated  the  residue  of  an  intestate's  estate,  as  though 
for  pious  uses,  giving  certain  portions  to  widow  and  children, 
if  there  were  any.  Later  statutes  compelled  aclministration 
to  be  granted  to  the  next  relatives  of  the  deceased  ;  but  here 
the.  immediate  result  was,  that  the  person  selected  for  the 
trust  might  make  the  office  lucrative  for  himself,  by  enjoying 
the  surplus,  to  the  exclusion  of  other  equal  kindred  to  the 
intestate.  For,  as  the  temporal  courts  finally  decided,  the 
ordinary  had  no  power  to  compel  a  distribution,  notwithstand- 
ing such  authority  had  long  been  assumed.^ 

To  this  unsatisfactory  state  of  the  law  we  owe  the  first  of 
our  formal  statutes  of  distribution,  —  one  of  those  excellent 
enactments,  following  the  Restoration,  which  have  placed 
English  jurisprudence  upon  a  sound  modern  establishment. 
This  act  provides  in  detail  for  distributing  justly  and  equally 
the  surplus  of  all  intestate  estates  amongst  the  wife  and  chil- 

'  Mass.  Stat.  1783,  c.  24,  §  10.  due  undisposed  of.     Clarke  v.  Hilton, 

2  Browne  v.  Cogswell,  5  Allen,  556.  L.  R.  2  Eq.  810. 

See  Reeve's  Trusts,  Re,  L.  R.  4  Ch.  D.,  ^  Eraser  v.  Page,  82  Ky.  73. 

as  to  a  bequest  to  an  executor,  but  not  in  An  executor  cannot  be  compelled,  by 

that  character.    Negative  words  will  not  summary  process  for  contempt,  to  make 

suffice  to  exclude  any  of  one's  next  of  distribution.     81  Va.  395. 

kin  from  sharing  beneficially  in  a  resi-  ■*  2  Bl.  Com.  515;   Edwards  v.  Free- 

602 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  495 


dren,  or  children's  children,  if  any  such  be,  or  otherwise  to  the 
next  of  kindred  to  the  dead  person  in  equal  degree,  or  legally- 
representing  their  stocks,  pro  sito  cuiquc  jure}  By  this  same 
statute  the  ordinary  spiritual  court  was  empowered  to  take 
bonds,  with  sureties,  from  all  administrators  on  their  appoint- 
ment, conditioned  not  only  to  exhibit  an  inventory,  and 
administer  the  estate  well  and  truly,  but  likewise  to  render  a 
just  account  of  one's  administration,  and  deliver  and  pay  the 
residue  found  due  to  such  person  or  persons  as  the  court 
should  decree,  pursuant  to  the  terms  of  this  act.^ 


man,  2  P.  Wms.  441 ;   Wms.  Exrs.  1483; 

1  Lev.  223.  The  spiritual  courts  had 
required  administrators  to  give  bonds, 
with  condition  to  distribute;   and  statute 

2  Hen.  VIII.  c.  5,  expressly  sanctioned 
"  taking  surety  "  of  the  person  to  whom 
such  office  was  committed.  It  appears, 
too,  to  have  been  the  custom,  moreover, 
to  divide  an  intestate's  personal  estate 
among  his  next  relatives.  Stat.  21  Hen. 
VIII.  c.  5,  §  3;  Wms.  Exrs.  529  ;  supra, 
§§  7'  139-  Assignment  before  a  dis- 
tributee's right  to  a  share  accrued,  con- 
fers no  full  right  upon  the  assignee.  3 
Dem.  567. 

1  Stat.  22  &  23  Car.  II.  c.  10.  Details 
are  given  in  Wms.  Exrs.  1434,  at  con- 
siderable length.  Admirable  as  is  the 
policy  of  this  statute,  some  English  ju- 
rists have  considered  it,  to  use  Lord 
Hardvvicke's  words,  "very  incorrectly 
penned."     Stanley   v.  Stanley,    I    Atk. 

457- 

From  the  operation  of  this  act  were 
expressly  excepted  customs  previously 
observed  within  the  city  of  London,  the 
province  of  York,  and  other  places.  The 
custom  of  the  city  of  London,  which  is 
the  remnant  of  the  old  common  law  on 
the  subject  (see  Lord  Macclesfield,  Free. 
Ch.  596),  distributed  according  to  the 
ancient  doctrine  of  pars  rationabilis. 
This,  in  substance,  divided  the  surplus 
into  three  parts  where  widow  and  chil- 
dren survived  the  intestate;  the  widow 
taking  one-third,  the  children  one-third, 
the  administrator  one-third.  If  only  a 
widow  or  only  children  survived,  such 


widow  or  such  children  took  one  moiety 
and  the  administrator  the  other.  If 
there  was  neither  widow  nor  child  sur- 
viving, the  administrator  had  the  whole; 
his  portion  being  known  as  the  "  dead 
man's  part  "  or  "  death's  part."  It  was 
this  "  dead  man's  part "  which  the  or- 
dinary or  administrator  formerly  applied, 
or  might  apply,  to  his  own  use,  until  the 
statute  I  Jac.  II.  c.  17,  required  it,  de- 
spite custom,  to  be  subject  to  the  statute 
of  distributions;  a  statute  which  doubt- 
less would  have  passed  much  earlier, 
had  not  widow  and  children  (who  had, 
we  must  remember,  the  choice  of  ad- 
ministrator) been  treated,  if  surviving, 
with  tolerable  fairness,  while  the  chief 
hardships  of  the  law  bore  upon  the 
more  remote  kindred.  The  custom  of 
London  made  deduction  for  "  the 
widow's  chamber,"  or  her  apparel  and 
the  furniture  of  her  bedchamber.  Cus- 
toms of  York  and  other  places  were 
quite  similar  to  that  of  London.  But 
by  Stat.  19  &  20  Vict.  c.  94,  all  these 
customs  are  abolished  as  to  the  estates 
of  persons  dying  on  or  after  January  ist, 
1857.  The  cases  under  this  head,  which 
in  England  are  becoming  rapidly  for- 
gotten, and  afford  to  American  readers 
interest  only  as  a  curious  historical 
study,  will  be  found  collated  in  Wms. 
Exrs.  1527-1549. 

2  See  Stat,  ib.;  Wms.  Exrs.  530,  531, 
1484.  As  to  language  used  in  the  court 
of  probate  act,  stat.  20  &  21  Vict.  c.  77, 
which  substitutes  probate  jurisdiction 
for  that  of  the  old  spiritual  courts,  see 


603 


§  49^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Statutes  are  to  be  found  in  all  of  the  United  States  ex- 
pressly directing  the  distribution  of  an  intestate's  personal, 
as  well  as  the  descent  of  ^  his  real  estate,  and  differing  in 
various  details  from  one  another,  though  based  upon  the 
English  statute  of  Charles  11.^  It  is  likewise  the  American 
rule  to  require  account  and  distribution  by  the  administrator, 
under  the  direction  of  the  probate  court,  and  to  insert  corre- 
sponding conditions  in  the  administration  bond.^ 

The  persons  among  whom  distribution  should  be  made, 
and  the  method  of  making  distribution,  must  therefore  be 
determined  by  local  statutes,  and  the  procedure  of  the  courts 
under  them.  But  the  rights  and  method  of  distribution, 
English  and  American,  deserve  some  further  attention.^ 

§  496.  Surviving  Husband's  Right  to  the  Residue  of  his 
Deceased  Wife's  Personalty.  —  Under  the  English  Statutes 
(and  perhaps  at  common  law),  not  only  is  the  surviving  hus- 
band entitled  to  administer  upon  his  wife's  estate  in  prefer- 
ence to  all  others,  but,  subject  to  the  payment  of  such  debts 
as  bind  him  upon  surviving  her,  he  recovers  her  outstanding 
personal  property  to  his  own  use  and  enjoyment.  His  inter- 
est is  a  peculiar  one,  moulded  by  the  peculiar  laws  of  cover- 
ture ;  and  he  is  said  to  administer  for  his  own  benefit  when 
he  administers  at  all,  and  to  acquire  a  title  to  his  wife's  per- 
sonalty, fitly  designated  as  a  title  jure  niariti  under  the  stat- 
utes of  distribution.* 

So  greatly,  however,  have  the  ancient  rights  of  husband 
and  wife  been  changed  by  modern  legislation,  both  in  Eng- 
land and  the  United  States,  that  the  present  legal  rule  on 
this  subject  cannot  be  stated  with  precision.^ 

Wins.  Exrs.  292.     Under  modern  Eng-  ^  2  Kent  Com.  136;   Barnes  7/.  Under- 

lish  practice,  accordingly,  the  bond  runs  wood,  47  N.  Y.   351;   Cox  z/.  Morrow, 

as  conditioned  to  pay  the  residue  to  the  14  Ark.  603;   Nelson  v.  Goree,  34  Ala. 

persons  entitled  under  the  statute  of  dis-  565;    Baldwin  v.  Carter,  17  Conn.  20I  ; 

tributions.  Woodman  v.  Woodman,  54  N.  H.  226; 

1  2  Kent  Com.  426,  and  notes.  Wilson    v.   Breeding,    50    Iowa,    629; 

2  Supra,  §  140.  Holmes  v.  Holmes,  28  Vt.  765.  See 
8  See  Table  of  Consanguinity.  statutes  of  the  several  States  regulating 
*  Clough  V.  Bond,  6  Jur.  50;   Schoul.  this  subject;   also  Schoul.  Hus.  &  Wife, 

Hus.  &  Wife,  §  408;   2  Bl.  Com.  515;      §§  405-409,  and  cases  cited.     The  stat- 
Watt  V.  Watt,  3  Ves.  246.  ute  29   Car.  II.  was  never  in  force  in 

604 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  498 

§  497.  Surviving  "Wife's  Rights  in  the  Distribution  of  her 
Deceased  Husband's  Personalty.  —  The  English  statute  ot  dis- 
tributions preserves  the  "  widow's  thirds,"  which  the  ancient 
common  law  bestowed  as  her  pars  ratioiiahilis ;  the  remain- 
ing two-thirds  going  to  the  children  of  the  intestate  or  their 
representatives.^  The  statute  further  provides,  as  likewise 
did  the  ancient  law,  that  when  the  husband  dies  intestate, 
leaving  a  widow  only,  and  no  lineal  descendant,  the  widow 
shall  have  a  moiety  or  half  of  his  personal  estate  ;  giving  a 
husband's  next  of  kin  the  other  half.  Not  more  than  one- 
half  can  the  widow  take  by  distribution,  under  any  circum- 
stances ;  for,  where  there  are  no  next  of  kin,  the  other  half 
goes  to  the  crown. ^ 

In  this  country  the  statute  of  Charles  II.  is  at  the  basis  of 
our  legislation  regarding  the  estates  of  intestates  ;  but  various 
modifications  are  found  in  the  several  States,  to  the  greater 
favor  of  the  surviving  wife ;  and  modern  legislation  at  the 
present  day  is  capricious  in  this  respect,  though  tending  to 
equalize  the  rights  of  surviving  spouses  in  one  another's 
property.^ 

§  498.  Rights  of  Children  and  Lineal  Descendants  in  Distri- 
bution.—  The  English  statute  directs  an  equal  distribution 
among  the  children  of  an  intestate,  after  deducting  the 
widow's  third  ;  or,  if  there  be  no  widow,  the  entire  residue  is 

Illinois;   and  the  husband  must  distrib*  the  statute  alone;   which  last,  it  is  ob- 

ute  according  to  the  local  statute  of  dis-  served,  virtually    bestows    the  "  death's 

tributions.     Townsend  v.  Radcliffe,  44  part "    upon    the    children    to    increase 

111.  446.  their   portion,   exclusive   of  the  widow. 

As  to  curtesy   at    the    common   law,  Wms.  Exrs.  1530.     Supra,  §  495,  n. 

or  the  surviving  husband's  potential  life  '•^  2  Bl.  Com.  515,  516;   2  Kent  Com. 

interest,   in    his  wife's   lands,  where    a  427;  Schoul.  Hus.  &  Wife,  §  427;  Cave 

child  was  born    of  the   marriage,  and  v.  Roberts,  8  Sim.  214. 

substitutes  for  this  right  under  some  late  '*  See    Schoul.    Hus.   &  Wife,  §   427, 

American  statutes,  see  Schoul.  Hus.  &  and  appendix;    the  latest  local  codes;  2 

Wife,  §§  417-423;    2  Kent  Com.  134;  Kent  Com.  nth  ed.  427,  428. 

I  Washb.  Real  Prop.  128.  A  surviving  spouse's  rights  may  be 

1  vStat.  22  &  23  Car.  II.  c.   10.     The  barred    by   antenuptial    settlement,  etc. 

statute   and  custom  of  London,  taken  Schoul.  Hus.  &  Wife,  §  363.     Divorce 

together,  so  as  to  divide  the  "death's  excludes  such  rights.     Schoul.  Hus.  & 

part  "  between  widow  and  children,  pro-  Wife,  §§  558,  559. 
vided  more  favorably  for  the  widow  than 

605 


§  49^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

portioned  equally  among  them.  Where  the  intestate  has  left 
only  one  child,  the  statute  by  implication  provides  for  such 
child,  giving  him  the  entire  two-thirds,  or,  in  case  of  no  sur- 
viving widow,  the  entire  residue.^ 

If  any  child  was  dead  at  the  time  of  the  intestate  parent's 
death,  and  yet  left  a  child  or  children  of  his  own  then  sur- 
viving, such  child  or  children  will  take  their  own  parent's 
share  in  the  intestate's  personalty,  by  what  is  termed  the 
"right  of  legal  representation." 

This  right  of  representation  extends  to  lineal  descendants 
in  the  remotest  degree,  the  descendants  of  a  deceased  heir, 
as  a  class,  being  substituted  to  the  share  their  own  parent 
would  have  taken  if  living ;  ^  though  exclusive  of  such 
parent's  widow.  But  representation  applies  only  where  one 
or  more  of  them  of  a  nearer  degree  to  the  intestate  survived 
him,  while  such  as  did  not,  left  lineal  descendants  instead, 
the  right  to  take  per  stirpes  thus  equalizing  a  distribution 
among  those  of  the  nearest  degree ;  for,  were  all  the  children 
of  the  intestate  dead,  and  only  grandchildren  left,  the  grand- 
children would  be,  in  fact,  the  next  of  kin  surviving,  and,  as 
equal  members,  take  per  capita;  while,  as  between  grand- 
children and  the  surviving  children  of  a  deceased  grandchild, 
supposing  such  a  case  to  have  occurred,  the  right  of  repre- 
sentation "Si^  per  stirpes,  would  once  more  operate.^  American 
statutes,  while  recognizing  these  general  rules,  specify  how 
far  the  right  of  representation  shall  apply ;  a  principle  which 
might  well  avail  among  collateral  kindred,  and  in  landed  in- 
heritance, but  whose  extent,  under  the  act  22  &  23  Car.  II., 
is  not  precisely  determined.* 

Children  of  the  half  blood  are  entitled  to  a  share  equally 
with  those  of  the  whole  blood  ;  a  rule  applicable  where  the 
parent  married  more  than  once,  and  had  offspring  by  the  dif- 

1  Wms.  Exrs.  1495,  1497;   Carth.  52.     13  Eq.  286.     Inheritance  or  succession 

2  Price  V.  Strange,  6  Madd.   161;    3     "  by  right  of  representation  "  takes  place 
Bro.  C.  C.  226;   Wms.  Exrs.  1496.  when   the    descendants    of  a    deceased 

^  2  Bl.  Com.  517;  Bac.  Abr.  tit.  Exors.  heir  take  the  same  share  or  right  in  the 

I.  3;    Wms.  Exrs.  1497,  1498.  estate    of    another    person     that    their 

*  Sevthle,  that,  as  long  as  there  are  parent    would    have    taken    if    living 

lineal  descendants,  the  division  must  be  Mass.  Pub.  Stats,  c.  125,  §  6.     And  see 

per  stirpes.      See  Ross's  Trusts,  L.  R.  North's  Estate,  Re,  48  Conn.  583. 

606 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  499 

ferent  marriages.^  And  this  rule  extends  generally  to  kin- 
dred of  the  half  blood  in  the  same  degree.  A  posthumous 
child,  too,  or  one  born  after  the  death  of  the  parent,  inherits, 
whether  of  the  whole  or  half  blood,  in  the  same  manner  as  if 
born  during  the  lifetime  of  the  parent  and  surviving  him.^ 
On  such  points,  statutes  of  distribution  in  our  American 
States  are  sometimes  found  explicit ;  providing,  also,  for  other 
cases,  where  the  common  law  was  either  harsh  or  uncertain, 
as  in  the  instance  of  illegitimate  children.^  So  highly  favored 
are  the  equal  rights  of  children  or  lineal  descendants  in  this 
country,  that  provisions  may  be  found  in  our  various  codes, 
restraining  the  parental  right,,  or,  at  all  events,  presuming 
strongly  against  the  parental  intention  to  deprive  any  one  of 
them  of  the  equal  benefits  of  his  will* 

§  499.  Advancements  to  Children ;  Hotv  reckoned  in  Distri- 
bution.—  By  the  English  statute  of  distributions,  portions 
are  taken  into  account ;  and,  if  the  father,  during  his  lifetime, 
makes  an  advancement  to  any  of  his  children,  towards  their 
distributive  share,  the  rule  is  to  deduct  this  in  making  dis- 
tribution.^ 


1  I  Mod.  209;  Carth.51;  Wms.  Exrs. 
1496;  2  Kent  Com.  424;  Crook  v.  Watt, 
2  Vern.  124.  Children  by  different 
fathers  or  by  different  mothers  may  be 
brothers  or  sisters  of  the  "  half  blood," 
in  the  sense  of  that  word,  as  it  ap- 
pears. 

2  2  Kent  Com.  424;  Edwards  v.  Free- 
man, 2  P.  Wms.  446;  Wms.  Exrs.  1497. 
And  see  Mass.  Pub.  Stats,  c.  127, 
§22. 

8  Mass.  Pub.  Stats,  c.  125,  §§  3-5. 
The  rights  and  disabilities  of  illegitimate 
children,  as  well  as  the  status  of  legiti- 
macy, are  subjects  considered  at  length 
in  Schoul.  Dom.  Relations,  Part  III., 
cs.  I,  6. 

*  Mass.  Pub.  Stats,  c.  127,  §  21;  2 
Kent  Com.  421  ;  4  Kent  Com.  471. 

6  Stat.  22  &  23  Car.  II.  c.  10,  §  5; 
Wms.  Exrs.  1485,  1498;  Edwards  v. 
Freeman,  2  P.  Wms.  435;  2  Bl.  Com. 
517.     As   to   the   deceased   father,  the 


statute  takes  away  nothing  which  has 
been  once  received  by  a  child;  but  only 
his  distributive  share  can  be  affected  by 
such  computation,  unless  he  chooses  to 
relinquish  more;  and  the  rule  of  hotch- 
pot applies  only  to  cases  of  actual  and 
complete  intestacy.  Walton  v.  Walton, 
14  Ves.  324;  Edwards  v.  Freeman,  2  P. 
Wms.  443.  Bringing  an  advancement 
into  hotchpot  is  intended  for  the  benefit 
of  children,  and  not  the  widow  ;  but,  as 
among  children,  the  rule  extends  to 
those  who  succeed  to  a  deceased  child's 
share  by  the  right  of  representation. 
Kircudbright  v.  Kircudbright,  8  Ves. 
51;  Proud  z'.  Turner,  2  P.  Wms.  560. 
But  grandchildren  who  take  per  capita 
need  not  thus  account  for  advancements 
to  their  respective  parents  deceased. 
Skinner  v.  Wynne,  2  Jones  (N.  C.)  41. 
Lands  received  by  settlement  upon  a 
younger  child,  and  charges  upon  such 
land,   have   been   included   within   the 


607    ■ 


§  500  EXECUTORS   AND    ADMINISTRATORS.  [PART  V. 

§  500.  Advancements  to  Children  ;  American  Rule.  —  To  dis- 
criminate carefully  under  such  maxims  must  be  difficult ;  and, 
in  this  country,  the  rule  of  advancements  does  not  appear  to 
be  so  strict,  more  stress  being  usually  laid  upon  mutual  in- 
tention at  the  date  of  the  transaction,  than  upon  the  equity  of 
distributing  to  all  children  alike.  It  is  true  that  advance- 
ments are  in  some  States  reckoned  by  a  legal  inference 
similar  to  that  which  the  English  cases  uphold  ;  nor  is  it  un- 
frequently  held  that  a  gift,  either  of  land  or  money,  which  is 
made  to  a  child  or  heir,  by  a  person  who  afterwards  dies 
intestate,  shall  be  presumed  an  advancement ;  ^  as  where,  for 
instance,  the  provision  was  calculated  to  aid  directly  and 
advance  the  child  when  starting  in  life.  But,  generally, 
all  such  presumptions  may  be  readily  overcome  by  proof  of 
actual  intent  ;^  while,  in  some  States,  the  statutes  of  distribu- 
tion, unlike  the  English,  permit  nothing  to  be  reckoned  as 
an  advancement  to  a  child  by  the  father,  unless  proved  to 
have  been  so  intended,  and  chargeable  on  the  child's  share 
by   certain    evidence   prescribed.^      Where   at    all    events    it 


English  statute  under  the  rule  of  ad-  Grattan,  18  111.  167;   Creed  v.  Lancaster 

vancements.      2  P.  Wms.  441;    Wms.  Bank,  i   Ohio  St.  i;   Wms.  Exrs.  1502, 

Exrs.  1500,  1501.     And  so  have  provis-  n.  by  Perkins;  4  Kent  Com.  419;    Hol- 

ions  by  marriage  settlement  and  pecu-  lister  v.  Attmore,  5  Jones  Eq.  373;    Fel- 

niary    portions.       Wms.    Exrs.     1502;  lows  v.  Little,  46  N.  H.  27;    85  Tenn. 

Edwards  v.   Freeman,   2  P.  Wms.  440.  430. 

Where  a  father  settles  upon  his  son  on  "^  Smith  v.  Smith,  21  Ala.  761 ;  Parks 
the  latter's  marriage,  all  the  limitations  v.  Parks,  19  Md.  373;  Phillips  v.  Chap- 
to  the  wife  and  children  of  such  son  pel,  16  Geo.  16;  Bay  v.  Cook,  31  111. 
should  be   considered   part  of   the  ad-  336. 

vancement.  Weyland  v.  Weyland,  2  ^  Mass.  Gen.  Stats,  c.  91,  §  6  ^^  seq. ; 
Atk.  635.  As  to  what  shall  constitute  Hartwell  v.  Rice,  i  Gray,  587;  22  Pick, 
an  advancement  of  the  latter  descrip-  508;  4  Kent  Com.  418;  Porter  v.  Por- 
tion, the  acts  of  the  father  appear  to  ter,  51  Me.  376;  Adams  v.  Adams,  22 
have  been  often  construed  in  England  Vt.  50;  Johnson  v.  Belden,  20  Conn, 
with  less  reference  to  actual  intention  322;  Mowrey  v.  Smith,  5  R.  I.  255. 
of  the  parties  than  the  requirement  of  See  also  Schoul.  Dom.  Rel.  §  273;  Van- 
equal  justice.  See,  eg.,  Wms.  Exrs.  zant  v.  Davies,  6  Ohio  St.  52;  Vaden  v. 
1502-1505;  I  Atk.  403;  8  Ves.  51;  2  Hance,  i  Head,  300;  119  III.  151,  170. 
P.  Wms.  435;  31  Beav.  583;  Boyd  v.  Hence  it  is  laid  down  that  whether  a 
Boyd,  L.  R.  4  Eq.  305;  Bennett  v.  Ben-  certain  provision  made  by  the  deceased 
nett,  L.  R.  10  Ch.  D.  474.  during  his  lifetime  be  a  gift  or  an  ad- 
^  See  Meadows  v.  Meadows,  11  Ire.  vancement  is  a  question  of  intention; 
L.  148;  2  Story  Eq.  Juris.  §  1202;  but  that,  if  it  was  originally  intended  hv 
Parks  V.  Parks,  19  Md.  323;   Grattan  v.  both  parent  and  child  as  a  gift,  it  can- 

608 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUK. 


§500 


clearly  appears  that  the  father  intended  a  gift,  the  gift  will 
not  be  treated  as  an  advancement.^ 

The  rule  of  bringing  one'.s  advancement,  in  real  or  personal 
estate,  into  Jiotchpot,  if  the  child  so  desire,  with  the  whole 
estate  of  the  intestate,  real  and  personal,  so  as  to  take  his 


not  be  subsequently  treated  by  the  father 
as  an  advancement,  without  at  least  the 
child's  knowledge  or  consent.  Lawson's 
Appeal,  23  Penn.  St.  85;  Sherwood  v. 
Smith,  23  Conn.  516.  On  the  other 
hand,  bonds  or  promissory  notes  held 
by  an  intestate  parent  ag.oinst  his  child, 
or  the  transfer  of  money  upon  an  ac- 
count stated,  when  expressed  in  the 
usual  form,  justify  rather  the  presump- 
tion that  there  was  a  loan  and  not  a  gift 
or  advancement  intended.  Vaden  v. 
Hance,  I  Head,  300;  Bruce  v.  Gris- 
com,  16  N.  Y.  Supr.  280;  Batton  v. 
Allen,  5  N.  J.  Eq.  99;  42  N.  J.  Eq.  15, 
633;  70  Ala.  484;  West  v.  Bolton,  23 
Geo.  531.  All  such  presumptions  may 
be  rebutted;  and,  to  the  facts  and  cir- 
cumstances attending  the  transaction, 
and,  likewise,  to  declarations  of  the  one 
as  part  of  the  res  gestae,  and  admissions 
by  the  other,  much  weight  is  attached. 
One's  advancement  may  be  changed 
into  a  gift  to  the  child;  and  one  may, 
by  his  will,  reduce  expressly  his  surviv- 
ing child's  legacy  out  of  consideration 
for  special  favors  rendered ;  but  the 
conversion  of  an  absolute  gift  into  an 
advancement  or  debt,  so  as  to  affect  a 
child's  right  of  distribution,  in  case  of 
intestacy,  is  not  to  be  accomplished  by 
the  mere  acts  and  declarations  of  the 
parent  subsequent  to  the  transaction, 
and  apart  from  the  child's  own  assent 
to  the  change.  Green  v.  Howell,  6  W. 
&  S.  203;  Mitchell  v.  Mitchell,  8  Ala. 
414;  Manning  v.  Manning,  12  Rich. 
Eq.  410;  Lawson's  Appeal,  23  Penn. 
St.  85;  Miller's  Appeal,  31  Penn.  St. 
337;  no  Ind.  444;  Sherwood  v.  Smith, 
23  Conn.  516.  Evidence  of  the  mutual 
intention,  in  short,  is  regarded  with 
great  favor  where  the  deceased  parent 
has  not  given  express  directions  by  his 
will;    nor  are   entries  and  memoranda 


by  the  parent  conclusive  as  to  either  the 
amount  or  the  character  of  the  tr.TUsfer 
to  his  child.  5  Watts,  9,  80;  Wms.  Kxrs. 
1502,  Perkins's  n.  The  advancement 
being  made  and  accepted,  the  incidents 
to  an  advancement  follow.  Nesmith  v. 
Dinsmore,  17  N.  H.  515.  As  under  the 
English  rule,  there  must  be  a  complete 
act  of  the  parent  during  his  life  divest- 
ing himself  of  the  property  to  constitute 
an  advancement.  Crosby  v.  Covington, 
24  Miss.  619.  Old  promissory  notes 
long  outlawed  may  be  presumed  to  have 
been  paid  rather  than  held  as  an  ad- 
vancement. 23  S.  C.  456.  A  contem- 
porary writing  or  the  peculiar  tenor  of 
a  promissory  note  or  other  security  may 
show  that  an  advancement  was  intended. 
Kirby's  Appeal,  109  Penn.  St.  41;  90 
Mo.  460.  Or  it  may  show  the  reverse. 
16  Lea,  453.  Circumstantial  evidence 
bears  on  the  issue.  58  Mich.  152.  An 
advance  by  the  father  may  consist  in 
paying  his  child's  debts.  85  Tenn.  430. 
With  the  assent  of  the  child  a  father 
may  change  his  advancement  into  a  gift. 
71  Ga.  544. 

As  to  impounding  a  child's  share  to 
pay  a  judgment  recovered  on  what  he 
owed  the  estate  by  way  of  advance,  see 
65  Md.  69,  153.  And  see  2  .Schoul. 
Wills  (in  preparation). 

It  is  a  general  rule  in  the  United 
States  (confirmed  by  statute  in  some 
States),  that  while  an  advancement  must 
be  taken  by  a  child  towards  his  shave, 
as  regards  a  distribution  of  the  estate, 
so  as  to  abate  or  extinguish  his  distribu- 
tive rights,  no  child  shall  be  required  to 
refund  any  part  of  the  sum  advanced  to 
him,  although  it  should  exceed  his 
share.  Black  v.  \Vhitall,  9  N.  J.  Eq. 
572;  Mass.  Gen.  Stats,  c.  91,  §  6;  Gush- 
ing V.  Gushing,  7  Bush,  259. 

1  Morgan,  Re,  104  N.  V.  74. 


609 


§   50I  EXECUTORS    AND    ADMINISTRATORS.  [PaRT  V. 

just  proportion  of  the  estate,  prevails  in  several  of  the  United 
States.^  But  this  privilege  of  election  to  the  child  is  by  no 
means  universally  conceded.^  The  child  who  thus  elects 
does  not  thereby  relinquish  his  title  to  the  advancement,  but 
takes  such  a  course  to  ascertain  whether  his  share  actually 
exceeds  or  falls  short  of  an  equal  share.^  In  this  case,  and, 
in  general,  wherever  the  value  of  an  advancement  is  to  be 
ascertained,  the  value  of  the  property  at  the  time  of  the 
advancement  governs  in  the  distribution,  and  interest  should 
not  be  reckoned.* 

§  50 ^-  G-eneral  Distribution  among  the  Next  of  Kin.  —  In 
default  of  surviving  husband,  widow,  children,  or  lineal  issue, 
the  general  rights  of  next  of  kin  must  be  considered.  Under 
the  English  and  American  statutes  of  distributions,  next  of 
kin  more  distant  than  children  and  their  representatives, 
may,  as  we  have  seen,  be  entitled  to  share  with  the  widow, 
or,  in  some  of  our  States,  with  the  surviving  husband  ;  but 
the  statute  rule  is,  that  if  there  be  no  wife,  surviving  husband, 
or  lineal  issue,  then  all  the  estate  must  be  distributed  among 
the  next  of  kin  of  equal  degree.  The  rules  of  consanguinity 
already  stated  in  connection  with  the  right  of  taking  out 
administration  should  here  be  applied  once  more.^ 

Both  English  and  American  statutes  regard  the  father  with 
much  favor  under  such  circumstances  ;  and  under  the  stat- 
ute 22  &  23  Car.  II.  c.  10,  if  the  intestate  thus  dying  left 

1  Wms.  Exrs.  7th  Eng.  ed.  1499;  Jack-  For  the  New  York  rule,  see  Beebe  v. 
sonz'.  Jackson,  28  Miss.  674;  2  Kent  Com.  Estabrook,  18  N.  Y.  Supr.  523.  The 
421;  Barnes  v.  Hazleton,  50  111.  429;  rule  is  sometimes  defined  by  local 
Knight  V.  Oliver,  12  Gratt.  33.  Chil-  statutes;  as  in  Massachusetts,  where 
dren  with  advancements,  refusing  to  the  just  proviso  is  found,  in  substance, 
come  into  hotchpot,  shall  be  disregarded  that,  if  the  value  of  the  advancement 
in  the  distribution.  St.  Vrain's  Estate,  was  precisely  expressed  contempo- 
I  Mo.  App.  294.  raneously  between  the  parties,  this  value 

^  See  Kent  Com.  419,  421.     Statutes  shall  be  reckoned.     Mass.  Gen.  Stats. 

are  to  be  found  in  various  States  on  this  c.  91,  §  3;   Osgood  v.  Breed,  17  Mass. 

subject.      lb.      Chancellor   Kent    does  356;  Nelson  v.  Wyan,  21  Mo.  347. 

not  appear  to  favor  this  special  right  of  Concerning    the    sale    of    expectant 

election,  nor  to  consider  the  privilege  estates  by  children,  see    Schoul.  Dom. 

of  any  consequence.     lb.  Rel.  §  272;    i   Story  Eq.  Juris.  §§  336-- 

2  Jackson  v.  Jackson,  28  Miss.  674.  339. 

*  Jenkins  v.  Mitchell,  4  Jones  Eq.  *  Supra,  §  loi.  And  see  Table  in 
207;   Wms.  Exrs.   1498,  «.  by  Perkins.     Appendix. 

610 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §   5OI 

a  father,  the  father  was  entitled  to  the  whole  of  the  personal 
estate  to  the  e.xclusion  of  all  others  ;  ^  the  mother  coming 
next  in  order,  but  even  thus,  under  the  amended  act,  having 
to  share  with  brothers  and  sisters  of  the  deceased,  if  there 
were  such.^  American  policy  tending,  however,  in  later 
times,  to  place  parents  upon  a  more  equal  footing  as  to  their 
own  children,  we  find  that  some  States  now  require  distribu- 
tion to  father  and  mother  in  equal  shares,  where  both  survive  ; 
or,  at  all  events,  prefer,  in  degree,  either  surviving  parent 
—  the  other  being  dead  —  to  brothers  and  sisters  of  the 
deceased.^  It  has  been  decided,  under  the  English  statute, 
that,  in  default  of  parents,  the  brothers  and  sisters  of  the 
deceased  are  to  be  preferred  to  a  grandparent,  notwithstand- 
ing all,  in  legal  strictness,  are  of  the  same  degree ;  *  and  this 
preference,  which  is  founded  in  natural  reason,  American 
codes  have  expressly  conceded,^  though  grandparents  are 
admitted  to  out-rank  uncles  and  aunts,  under  the  English 
reckoning.^ 

If  the  intestate  leaves  no  husband,  widow,  or  issue  ;  and  no 
father,  mother,  brother  nor  sister ;  his  personal  estate  goes  to 
his  next  of  kin  in  equal  degree  ;  and,  as  to  these,  our  codes 
of  distribution  rarely  specify  more  particularly  the  parties 
entitled.  But,  it  is  observable,  that  in  various  American 
States  it  is  distinctly  prescribed  that  the  degrees  of  kindred 
shall  be  computed  according  to  the  rules  of  the  civil  law.'' 

Half-blood   kindred,  in   the  same   degree,   are   to   inherit 

1  Wms.  Exrs.  1506;  Blackborough  v.  ^  Wms.  Exis.  1509,  15 10.  The  Mas- 
Davis,  I  P.  Wms.  51.  sachusetts   statute   (Gen.  Stats,  c.  93) 

2  As  to  the  mother's  sharing  with  provides,  by  way  of  qualifying  the  dis- 
brothers  and  sisters,  see  stat.  i,  Jac.  II.  tribution  among  the  next  of  kin  in  equal 
c.  17;  Wms.  Exrs.  1506-1508,  and  cases  degree,  that  when  there  are  two  or  more 
cited.  The  English  statutes  on  this  collateral  kindred  in  equal  degree,  but 
point  are  carelessly  drawn;  but  various  claiming  through  different  ancestors, 
American  codes  express  the  idea  very  those  who  claim  through  the  nearest 
clearly.  ancestor    shall    be    preferred    to    those 

8  Mass.    Pub.    Stats,    cs.    125,  135;     claiming  through  an  ancestor  who    is 

Oliver  V.  Vance,  34  Ark.  564.  more  remote. 

*2   Freem.    95;    3    Atk.    762,  763;         "See  Mass.   Gen.   Stats,  c.  91,  §  5; 

Ambl.  191.  Sweezey  v.  Willis,  i  Bradf.  Sur.  (N.  Y.) 

6  See  local  codes.  495;   table  in  Appendix. 

611 


§   503  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

equally  with  those  of  the  whole  blood,  as  our  local  statutes 
not  unfrequently  declare,  and  the  English  decisions  concede.* 

§  502.  The  same  Subject.  —  The  English  statute  of  distri- 
butions appears  to  have  so  limited  the  right  of  representation 
among  collaterals  as  to  exclude  it,  where  the  next  of  kin  are 
more  remotely  related  to  the  intestate  than  brothers  and 
sisters  ;  and  hence,  where  the  intestate  leaves  surviving  an 
uncle  or  aunt  and  the  son  of  another  uncle  or  aunt  deceased, 
the  latter  can  take  nothing  ;  hence,  too,  surviving  nephews 
and  nieces  become  distributees,  regardless  of  the  child  of  a 
deceased  nephew  or  niece.^  A  corresponding  limitation  may 
be  found,  more  or  less  precisely  expressed,  in  American 
codes  ;  ^  which,  likewise,  incline  to  treat  lineal  kindred,  and 
brothers  and  sisters,  more  favorably  than  more  remote  col- 
lateral kindred  in  respect  of  representation. 

It  should  always  be  borne  in  mind,  that  as  husband  and 
wife  are  not  legally  next  of  kin  to  one  another,  so  distribution, 
and  those  other  rights  which  pertain  to  kinship,  cannot  be 
predicated  of  a  mere  connection  by  marriage ;  on  the  con- 
trary, there  must  be  common  blood  in  the  intestate  and  those 
claiming  to  be  entitled  to  share  as  kindred.  And  among 
kindred  are  three  classes :  those  in  the  descending  line, 
those  in  the  ascending,  and  those  in  the  collateral.* 

§  503.  Distribution  where  there  is  no  Known  Husband, 
"Widow  or  Next  of  Kin.  —  Where  the  deceased  intestate  has 
left  no  husband,  widow,  or  next  of  kin,  the  residue,  after 
paying  all  assets,  belongs,  by  English  law,  to  the  crown,  as 
ultinms  haeres ;^  and,  under  our  American  codes,  the  residue 

1  The  English  cases  extend  this  doc-  Mass.  287;  Hatch  v.  Hatch,  21  Vt. 
trine  to  posthumpus  brothers  and  sisters  450;  Adee  v.  Campbell,  79  N.  Y.  52. 
of  the  half  blood.  Watts  v.  Crooke,  And  see  further,  as  to  children  of  de- 
Show.  P.  C.  108;  Burnet  v.  Mann,  i  ceased  brother,  etc.,  Conant  v.  Kent, 
Ves.  Sen.  156;  Wins.  Exrs.  151 1.  And  130  Mass.  178. 
see  Mass.  Gen.  Stats,  c.  91,  §  5.  *  Bouv.    Diet.    "Kindred."     See,    as 

■^  2  Vern.  168;    Powers  v.  Littlewood,  between  brother  and  the  grandchild  of 

1  P.  Wms.  595;    Wms.  Exrs.  i486,  1512.  a  deceased  brother,  Suckley,  Matter  of, 
8  2  Kent  Com.  425;   Parker  v.  Nims,  18  N.  Y.  Supr.  344.    And  see  table, /^j/. 

2  N.  H.  460;    Porter  z/.  Askew,  1 1  Gill         ^  Megit    v.    Johnson,    Dougl.    548; 
&  J.    346 ;    Bigelow  v.   Morong,    103    Taylor  v.  Haygarth,  14  Sim.  8. 

612 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  504 

reverts  or  escheats  in  like  manner  to  the  State. ^  But,  while 
American  policy  appears  to  regard  the  State  official  who  may 
thus  receive  the  balance  as  a  sort  of  trustee  for  the  benefit  of 
those  who  may  have  lawful  claims  thereon,^  and  in  final  de- 
fault of  such  claimants,  for  the  public,  it  is  held  in  England 
that  the  crown  shall  take  the  residue  personally  and  bene- 
ficially. Indeed,  English  sovereigns  have  been  accustomed 
to  grant  such  property  to  their  own  favorites  by  letters 
patent  or  otherwise,  reserving,  perhaps,  one-tenth  part  for 
the  royal  chest ;  ^  though  the  long  pendency  of  administra- 
tion procedings  in  chancery,  under  a  bill  in  equity,  may 
afford  to  absentees  an  ample  opportunity  to  appear  and 
assert  their  rights  before  such  final  distribution  is  awarded. 

§  504.  Time  and  Method  of  Distribution.  —  The  due  compu- 
tation of  that  balance  which  serves  as  the  basis  of  a  rightful 
distribution  is  necessarily  postponed  to  the  lawful  adjustment 
of  debts  due  from  the  estate  to  its  creditors  ;  and  hence  the 
postponement  of  distribution.  The  English  statute  of  dis- 
tributions directs  that  no  distribution  shall  be  made  till  after 
a  year  from  the  intestate's  death,  and  that  distributees  shall 
give  bond  to  indemnify  the  administrator  in  ratable  propor- 
tion if  lawful  debts  afterwards  appear.*  American  statutes 
proceed  upon  the  same  general  theory  ;  usually  permitting, 
however,  that  the  estate  shall  continue  unsettled  until  the 
statute  period  for  presenting  claims  (whether  longer  or 
shorter,  and  whether  rightfully  computed  from  the  intestate's 
death  or  from  the  date  of  the  administrator's  appointment) 
shall  have  expired. 

Upon  a  final  settlement  of  the  administration  accounts, 
in  American  practice,  distribution,  if  sought,  should  be 
granted.^  Distribution,  whether  total  or  partial,  may  be 
applied  for  by  the  representative  or  by  distributees,  as  local 

1  See  Mass.  Gen.  Stats,  c.  95,  §§  12-  as  of  persons  having  no  kindred,  passed 
15;  Parker  v.  Kuckens,  7  Allen,  509;  in  like  manner  to  the  sovereign,  by  the 
Fuhrer  v.  State,  55   Ind.   150;    Leland     common  law. 

V.  Kingsbury,  24  Pick.  315.  *  Wms.    Exrs.   i486;    stat.  22   &  23 

2  Mass.  Gen.  Stats,  c.  95,  §§  12-15.        Car.  II.  c.  10,  §  8. 

8  Wms.  Exrs.  433,  434,   1515;    2  Bl.  f*  Pritchett's  Estate,  i?(f,  52  Cal.  94; 

Com.  505,  506.    The  estates  of  bastards,     Part  VII.,  c.  I, /ojA 

613 


§  504  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Statutes  frequently  provide,  after  a  certain  period  reasonably 
long  for  ascertaining  the  true  surplus,  and  before  a  final  set- 
tlement of  the  estate ;  a  refunding  bond  being  part  of  this 
proceeding,  where  the  administrator  continues  responsible 
for  claims  upon  the  estate.^  But  it  is  usual  to  postpone 
such  decree  until  the  time  has  fully  elapsed  for  settling  the 
debts.  A  decree  for  partial  distribution  is  provided  in  the 
practice  of  some  States  ;  such  decree  being  conclusive  only 
as  to  the  funds  then  distributable,  and  assets  being  reserved 
for  further  liabilities  connected  with  the  administration.^ 

Where  the  persons  entitled  are  well  known  to  the  represen- 
tative, both  as  to  legal  right  and  identity,  payment  is  usually 
made  without  the  formality  of  procuring  a  decree  of  distribu- 
tion from  the  court.^  But  where  questions  affecting  such 
rights  are  pending,  distribution  should  neither  be  made  nor 
decreed. 

In  modern  equity  and  probate  practice  where  a  distributee 
or  a  legatee  ov/es  the  estate,  either  as  a  debtor  of  the  dece- 
dent or  by  reason  of  matters  connected  with  the  settlement 
of  the  estate,  his  indebtedness  may  be  set  off  against  the 
property  or  fund  which  accrues  to  him.* 


1  Lilly  V.  Stahl,  5  Ind.  447;  Black-  *  As  to  permitting  an  executor  or  ad- 
erby  t'.  Holton,  5  Dana,  520;  Richmond  ministrator  to  set  off  a  debt  due  to  his 
V.  Delay,  34  Miss.  83;  Johnston  v.  Fort,  decedent  against  the  legacy  or  distribu- 
30  Ala.  78;  Edgar  v.  Shields,  i  Grant  tive  share  payable,  see  Courtenay  v. 
(Pa.)  361 ;  Hays  v.  Matlock,  27  Ind.  Williams,  3  Hare,  539  ;  Hodgson  v. 
49.     And  see  Part  Vn.,  c.  \,post.  Fox.   L.  R.  9  Ch.  D.   673;   23  W.  R. 

2  Kline's  Appeal,  86  Penn.  St.  363;  826;  28  W.  R.  914  ;  Cutliff  v.  Boyd, 
Harrison  v.  Meadors,  41  Ala.  274;  Cur-  72  Ga.  302.  And  see,  as  to  setting  off 
tis  V.  Brooks,  71  111.  125.  the  representative's  own  advances,  Tay- 

3  See  Part  VII.,  c.  \,post.  A  decree  lor  v.  Taylor,  L.  R.  20  Eq.  155;  Kelly 
of  distribution  in  a  final  settlement  is  v.  Davis,  37  Miss.  76.  See  further,  37 
inconclusive  on  a  minor  for  whom  no  Ala.  74;  2  Sneed.  200;  Nelson  v.  Mur- 
guardian  ad  litem  was  appointed.   Con-  fee,  69  Ala.  598;    §  486. 

will  V.  Conwill,    61    Miss.  202.     Money  As  to  the  public  administrator's  final 

is  sometimes  paid  into  court  for  distribu-  deposit  of  unclaimed  balance,  see  Mass. 

tion  on  the    settlement    of  the   estate.  Gen.  Stats,  c.  95 ;    Leland  v.  Kingsbury, 

93  Ind.  173.     But  the  practice  in  some  24  Pick.  315;   Commonwealth  v.  Blan- 

States  is   for  the  decree  to  issue  to  the  ton,  2  B.  Monr.  393;    Fuhrer  v.  State, 

administrator,  who  procures  the  receipts  55  Ind.   150.     But,  if  there  be  known 

of  all  the  distributees  named,  and  then  kindred,  a  public  administrator  should 

returns  the  full  document  to  be  filed  at  distribute     among    them.       Parker    u 

the  probate  registry.  Kuckens,  7  Allen,  509;   56  Vt.  187. 

614 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  506 

§  504  a.  The  same  Subject ;  Decree  of  Distribution.  —  A 
decree  of  distribution  should  specify  the  distributee  ;  also  the 
personal  representative  of  any  deceased  distributee  as  the  per- 
son to  receive  the  share.  An  order  which  in  effect  requires 
payment  to  the  next  of  kin  is  erroneous  and  insufficient  for 
protection.^  But  an  error  in  a  decree  of  partial  distribution 
may  be  cured  on  the  next  distribution. ^  An  ex  parte  decree 
of  distribution,  which  does  not  follow  the  statute,  fails  to  pro- 
tect.^ A  decree  is  sometimes  opened  and  amended  upon  a 
suitable  state  of  facts.*  An  order  of  distribution  obtained 
by  fraud  may  be  set  aside,  so  long  as  rights  are  not  confirmed 
by  limitations.^ 

§  5^5-  Distribution  w^here  Real  Estate  has  been  sold  to  pay 
Debts.  —  Distribution  applies,  in  general,  to  personalty  alone  ; 
real  estate  of  the  decedent  descending  to  his  heirs.  The 
surplus  of  the  proceeds  of  a  sale  of  realty,  after  payment 
of  debts,  may  be  distributed  among  the  heirs  or  those  claim- 
ing under  them.^ 

§  506.  Whether  Distribution  may  be  of  Specific  Chattels  not 
reduced  to  Cash.  —  In  order  to  distribute  strictly  under  a  de- 
cree of  distribution,  the  reduction  of  the  surplus  to  cash  would 
seem  to  be  necessary.  But  such  a  course  must  sometimes  be 
highly  disadvantageous,  in  these  times,  especially  where  the 
estate  is  a  large  one ;  and  it  is  preferable  wherever  the  dis- 
tributees can  be  brought  into  accord,  to  make  a  division  spe- 
cifically or  in  kind,  save  so  far  as  a  sale  may  have  been  neces- 
sary for  the  security  and  benefit  of  the  estate  in  course  of 
administration."     Under  all  circumstances,  however,  distribu- 

1  Grant  v.  Bodwell,  78  Me.  460.    The  *  4  Dem.  30. 

local  statute  should  be  followed.  ^  Leavens's  Estate,  65  Wis.  440. 

2  Dickinson's  Appeal,  54  Conn.  224.  ^  Sears  v.  Mack,  2  Bradf.  (N.  Y.) 
The  court  in  this  State  is  not  precluded     394;   Part  W.,  post. 

from  acting  unless  the  parties  interested  '  Evans  v.  Inglehart,  6  Gill  &  J.  171 ; 

file  a  solemn  document  of  division.    lb.  Hester  v.  Hester,  3  Ired.  Eij.  9;    Reed's 

8  Shriver  v.  State,  65  Md.  278.  Estate,  82  Penn.  St.  428.  Local  statutes 

See  as  to  the  framing   of  a  decree  sometimes  provide  for  a  specific  distri- 

where  the  decedent  had  deposits  in  a  bution  of  personal  property  in  certain 

savings     bank     in     trust     for     various  cases.      Rose  v.  O'Brien,  50   Me.    188. 

parties.     4  Dem.  24.  If  shares   of  specific  property   are    not 

615 


§  506 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


tees  should  be  equally  dealt  with,  and  upon  a  just  valuation 
of  the  property,  and  the  administrator  should  stand  impartial 
as  amonsf  them.^ 


exactly  equal,  the  balances  may  be  made 
up  in  niuney.  Williams  v.  Holmes,  9 
Md.  281.  Where  those  interested  in 
the  estate  divide  among  themselves  the 
effects  of  an  intestate,  the  administrator 
has  usually  no  cause  of  complaint. 
Weaver  v.  Roth,  105  Penn.  St.  408. 
Local  codes  are  found  on  this  point; 
but  not  so  as  to  authorize  distribution 
in  kind,  of  choses  in  action  or  money 
rights,  some  of  which  are  collectible 
and  others  are  doubtful  or  desperate. 
115  111.  83.  As  to  compromising  on 
such  money  rights,  see  71  Ala.  258. 

1  If,  on  final  settlement  of  the  admin- 
istrator's accounts,  the  assets  are  partly 
gold  and  partly  currency,  each  distribu- 
tee should  have  his  fair  share  of  each 
kind.  Lowry  v.  Newsom,  51  Ala.  570. 
See  Tilsen  v.  Haine,  27  La.  Ann.  228. 
And,  in  general,  distributees  should  be 
equally  dealt  with.  Lowry  v.  Newsom, 
51  Ala.  570. 

At  the  expiration  of  a  specified  time, 
the  distributee  may  bring  an  action  for 
his  share  against  the  administrator  un- 
der the  local  act.  10  B.  Mon.  62.  But 
cf.  Thornton  v.  Glover,  25  Miss.  132. 
Distributees  are  thus  entitled  to  distri- 
bution upon  tendering  a  refunding  bond. 
24  Miss.  150.  As  a  general  rule,  a  dis- 
tributee has  the  right  to  compel  a  distri- 
bution at  any  time  after  the  lapse  of  the 
period  limited  for  presenting  and  suing 
upon  claims;  but  the  rights  of  creditors 
should  be  protected  according  to  the 
exigency.  2,2,  Miss.  134.  An  adminis- 
trator should  not  distribute  nor  suffer  a 
decree  of  distribution  to  be  entered, 
regardless  of  claims  of  creditors  brought 
to  his  notice  which  might  reduce  the 
surplus.  Clayton  v.  Wardwell,  2  Bradf. 
I.  If  residuary  parties  are  willing  to 
take  their  share  in  personal  assets,  the 
representative  should  not  convert  into 
cash.     82  Penn.  St.  428. 

Distributees  have,  of  course,  no  right 

6 


to  sue  for  and  recover  claims  due  their 
intestate's  estate  pending  a  settlement, 
for  this  is  a  fundamental  right  of  the 
administrator.  Kaminer  v.  Hope,  9 
S.  C.  253.  And  until  distribution  of  an 
estate  is  made,  the  legal  title  to  the 
assets  remains  in  the  representative, 
irrespective  of  a  distributee's  debts,  no 
matter  where  the  possession  may  be. 
Hence,  shares  of  the  distributees  can- 
not be  reached  by  garnishment  pending 
the  administration.  Selman  v.  Milliken, 
28  Ga.  366.  But,  after  lapse  of  the 
time  for  presenting  claims  and  a  final 
settlement  by  the  administrator,  includ- 
ing the  payment  of  debts,  and  distribu- 
tion, the  property  divided  among  the 
distributees,  or  held  by  them  in  com- 
mon, may  become  liable  for  their  re- 
spective debts,  or  be  made  available  for 
their  own  benefit.  As  to  their  rights, 
after  a  final  settlement  by  the  adminis- 
trator, to  sue  upon  an  uncollected  chose, 
see  Humphreys  v.  Keith,  ii  Kan.  108; 
Pratt  V.  Pratt,  22  Minn.  148.  And  as 
to  liability  of  the  property  correspond- 
ingly for  their  debts,  see  Brashear  v. 
Williams,  10  Ala.  630.  See  also,  as  to 
the  effect  of  a  bond  fide  payment  made 
to  the  next  of  kin  before  administration, 
Johnson  v.  Longmire,  39  Ala.  143;  su- 
pra, §  120.  In  fact,  the  legal  title  to  the 
personal  property  of  a  decedent  vests  in 
the  administrator  specially,  and  for  the 
special  purposes  of  collecting  and  pre- 
serving the  assets,  paying  the  debts,  and 
distributing  the  surplus.  As  to  the  legal 
title  of  distributees,  where  there  is  no 
administration,  and  no  necessity  for  one, 
see  Andrews  v.  Brumfield,  32  Miss.  107. 
After  an  estate  has  been  distributed, 
the  distributees  cannot  treat  the  settle- 
ment as  illegal  or  void,  on  account  of  an 
irregularity  in  the  proceedings,  without 
restoring,  or  offering  to  restore,  what 
they  have  received  under  the  settlement. 
McLeod  V.  Johnson,  28  Miss.  374. 

16 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.    §  508 

§  507.  Death  of  Distributee  pending  Distribution.  —  Descent 
is  cast,  and  ri^dits  of  distribution  are  vested,  upon  the  death 
of  the  intestate  ancestor  or  person  whose  estate  is  to  be 
administered  ;  ^  hence  the  subsequent  death  of  a  distributee 
transfers  his  interest  to  his  personal  representative. 

§  508.    Distribution  ;   Refunding  Bond,  Contribution,  etc.  —  A 

refunding  bond  should  be  taken  by  the  administrator,  for  his 
own  protection,  from  each  distributee,  wherever  he  makes 
voluntary  distribution,  before  creditors'  claims  are  barred, 
since  otherwise  he  cannot  require  contribution  if  compelled 
to  pay  such  claims,  according  to  the  rule  of  some  States  ;2  a 
rule  announced,  however,  not  without  admitted  exceptions.^ 
Where  the  administrator  has  sufficient  funds  for  his  own 
reimbursement,  he  cannot  recover  for  making  an  excessive 
payment  to  a  distributee ;  and  his  negligence  or  default  may 


^  If,  therefore,  the  surviving  widow 
of  an  intestate  dies  before  the  personal 
estate  has  been  distributed,  her  share  or 
surplus  will  devolve  upon  her  own  per- 
sonal representatives.  Wms.  Exrs.  1526; 
Carth.  51,  52;  McConico  v.  Cannon,  25 
Ala.  462;  Foster  v.  Fifield,  20  Pick.  67; 
Moore  v.  Gordon,  24  Iowa,  158;  Kings- 
bury V.  Scovill,  26  Conn.  349 ;  Puckett 
V.  James,  2  Humph.  565.  Cf.  Maxwell 
V.  Craft,  32  Miss.  307.  And  so  corre- 
spondingly with  a  surviving  husband  or 
one  next  of  kin  to  a  deceased  person 
entitled  in  like  manner.  As  to  the  hus- 
band's death,  pending  settlement  of  his 
wife's  estate,  a  circuitous  course  was 
formerly  taken  in  English  practice.  See 
Schoul.  Hus.  &  Wife,  §  415;  Roosevelt 
V.  Ellithorpe,  10  Paige,  415;  Fielder  v. 
Hanger,  3  Hagg.  Ec.    770.      And  see 

§483. 

Where  any  of  the  distributees  of  the 
estate  have  died,  their  legal  representa- 
tives should  be  brought  in  before  a  final 
settlement  of  the  estate  is  allowed  in 
court.  Ilall  V.  Andrews,  17  Ala.  40. 
The  case  resembles  that  of  a  residuary 
legatee  who  dies  before  his  surplus  is 
ascertained;  the  distributees  of  an  in- 
testate estate  being,  as  it  were,  residuary 

61 


legatees  under  a  will  drawn  up  by  the 
legislature  for  general  emergencies.  See 
Cooper  V.  Cooper,  L.  R.  7  H.  L.  53. 

Where  one  of  the  distributees  died 
before  settlement  and  the  administrator 
paid  part  of  his  share  for  the  support  of 
such  distributee's  family,  he  was  allowed 
a  credit  in  equity,  where  it  was  shown 
that  creditors  and  others  in  interest  did 
not  suffer  in  consequence.  95  N.  C.  265. 
Advances  made  by  the  administrator 
to  the  distributee  will  be  so  treated  in 
case  of  such  distributee's  death  before 
the  time  of  distribution,  and  although 
he  gave  his  note  for  such  advance. 
Lyle  V.  Williams,  65  Wis.  231.  See, 
further,  63  Cal.  520. 

2  Moore  v.  Lesueur,  38  Ala.  237; 
Musser  v.  Oliver,  21  Penn.  St.  362; 
supra,  §  506. 

8  Alexander  v.  Fisher,  18  Ala.  374; 
1 1  Ala.  264.  Such  refunding  bonds  are 
usually  taken  with  reference  to  claims 
of  creditors,  and  not  by  implication,  so 
as  to  recover  for  an  excess  paid  by  way 
of  distril>ution.  State  v.  McAleer,  5 
Ired.  L.  632;  Robinson  v.  Chairman,  8 
Humph.  374;  Simpson's  Appeal,  109 
Penn.  St.  383. 


§   508  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

debar  him  in  other  cases  from  procuring  reimbursement ; 
though  creditors  might,  on  their  own  behalf,  if  not  them- 
selves at  fault,  pursue  assets  into  the  hands  of  the  distributees.^ 
If  the  representative  fails  to  take  a  refunding  bond  from  the 
next  of  kin  where  he  pays  before  creditor's  are  debarred  from 
pursuing  their  claims,  he  makes  himself  personally  liable  to 
the  creditors,  at  all  events,  for  the  amount  he  has  distributed, 
and  honest  error  will  not  shield  him.^  Local  codes  provide 
that  the  administrator  need  not  distribute  until  the  time  has 
elapsed  for  ascertaining  what  the  true  balance  above  the 
debts  shall  be,  and  earlier  distribution  should  not  be  expected 
by  kindred  unless  they  give  the  refunding  bond. 

1  Singleton   v.    Moore,  Rice  (S.    C.)  than  that  of  the  common  law  in  such 

Ch.  no;   Saeger  z*.  Wilson,  4  Watts  &  cases. 

S.  501 ;  Donnell  v.  Cook,  63  N.  C.  227;         2  Jones's  Appeal,  99  Penn.   St.   124; 

Wms.  Exrs.  883,  1450,   1452,  and  Per-  13  Phila.  350.     But  as  to  acting  with 

kins's  note.     And  see  supra  as  to  pay-  due  regard  to  the  supposed    rights   of 

ments  by  executors  (§  491),  which  indi-  creditors  in  such  a  case,  see  Graves  v. 

cates  that  the  equity  rule  is  more  liberal  Spoon,  18  S.  C.  386. 

618 


PART   VI. 

GENERAL   POWERS,  DUTIES,  AND   LIABILITIES  OF   EXECU- 
TORS  AND   ADMINISTRATORS   AS   TO   REAL  ESTATE. 


CHAPTER   I. 

representative's   title  and  authority  in  general. 

§  509.  No  Inherent  Authority  or  Title  as  to  Decedent's  Real 
Estate.  —  As  we  have  already  seen,  the  real  estate  of  a  dece- 
dent descends  at  once  to  his  heirs  or  devisees,  and  the  per- 
sonal representative  has  no  inherent  authority  or  title  thereto 
under  his  appointment. ^  An  administrator,  more  especially, 
takes  neither  estate,  title,  nor  interest  in  the  realty  of  his 
intestate.^  Nor  has  an  executor  authority  over  real  estate, 
unless  the  testator  expressly  confers  such  power  by  his  will ;  ^ 
and,  even  though  thus  empowered,  whether  to  sell  or  dispose 
of  the  decedent's  land,  or  to  lease  it,  or  to  mortgage  it,  or  to 
invest,  re-invest,  or  change  investments  of  real  estate,  such 
power  is  confined  to  the  methods  and  purposes  therein  ex- 
pressed.* 

Accordingly,  an  executor  or  administrator  has  no  inherent 
authority  to  make  leases  of  the  real  estate  belonging  to  his 

1  Supra,    §    212,    and    cases    cited;  the  benefit  of  creditors  and  payment  of 

Wms.   Exrs.   650.      As  to  what  is  real  debts.     Gladson    v.   Whitney,  9    Iowa, 

estate,  and  not  personalty,  in  the  case  267;    Crocker  v.   Smith,   32   Me.   244; 

of  manure,   hop-poles,  etc.,  see   Fay  v.  Spears  Eq.  399. 

Muzzey,  13  Gray,  53;  Bishop  v.  Bishop,  *  Wms.  Exrs.  650;   Gregg  v.  Currier, 

II  N.  Y.  123.  36  N.  H.  200.     And  see  Place,  Re,  I 

"^  U.  S.  Dig.  1st  series,  Executors  and  Redf.  276. 

Administrators,    1278;    supra,    §    212;  *  i  Sugd.  Powers,  1 28  <•/ Je-^?.,  6th  ed. ; 

Drinkwater  v.  Drinkwater,  4  Mass.  354;  James  v.  Beesly,  4  Redf.  (N.  V.)  236; 

Stearns  t/.   Stearns,    i    Pick.    157;   Wal-  Wms.  Exrs.  650,  654,  944,  951,  notes  by 

bridge   v.    Day,    31    111.  379;   Vance   v.  Perkins;    Hauck  v.  Stauffer,  28    Penn. 

Fisher,  10  Humph.  21 1;   Gregg  v.  Cur-  St.  235;  Thompson  v.  Schenck,  16  Ind. 

rier,  36  N.   H.  200.     An  administrator  194;    Brown   v.   Kelsey,  2  Cush.   243; 

has   nothing  to  do  with  real  estate,  or  Hawley  v.  James,  1 6  Wend.  61. 
title  thereto  of  the  deceased,  save  for 

619 


§  50Q 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 


decedent's  estate.^  Nor  to  grant  an  easement  or  right  of 
way  therein.^  Nor  to  bring  ejectment,^  or  sue  for  trespass,* 
where  the  right  originates  after  the  decedent's  death.  He 
has  no  inherent  power  to  sell  the  land  :  and  his  conveyance, 
invalid  for  want  of  power  in  him  to  make  it,  appears  to  leave 
the  title  in  the  heirs  or  devisees,^  while  he  cannot  be  charged 
with  its  value  officially  as  assets  of  the  estate.^  He  cannot 
recover  possession  of  the  decedent's  land  by  a  suit  at  law.''^ 
Nor  are  the  proceeds  of  a  sale  of  such  land,  made  by  order 
of  a  court  having  no  competent  jurisdiction,  assets  in  his 
hands.^  Nor  should  he  invest  in  land  nor  apply  personal 
assets  to  repairs  and  improvements  of  the  decedent's  real 
estate,  even  though  his  decedent  had  agreed  to  make  them.* 
Nor  should  he  make  outlay  to  strengthen  the  title.^'^  Nor 
can  he  mortgage  the  decedent's  lands. ^^ 

Even  admitting  that  the  personal  representative  may  insti- 
tute proceedings  for  setting  aside  a  conveyance  of  land,  which 
the  decedent  made  in  fraud  of  his  creditors,  this  is  for  the 


1  Taylor  Landl.  &  Ten.  §  133;  Bac. 
Abr.  Leases,  I.  7;  2  W.  Bl.  692;  Bank 
V.  Dudley,  2  Pet.  492;  4  Bush,  27;  Lee 
V.  Lee,  74  N.  C.  70.  Otherwise,  how- 
ever, as  to  dealing  with  leases  granted 
to  his  decedent,  which  are  chattels  real. 
Supra,  §  353.  But  such  a  lease  by  an 
executor  or  administrator,  though  good 
at  law,  is  voidable  in  equity,  unless 
shown  to  be  in  the  course  of  adminis- 
tration, and  hence  the  concurrence  of 
legatees  or  distributees  may  often  be 
desirable.  Statutes  sometimes  define 
the  right.  See  Taylor  Landl.  &  Ten. 
134;  3  East,  120;   8  Sim.  217. 

'■^  Hankins  v.  Kiml)all,  57  Ind.  42. 

^  Wms.  Exrs.  632,  792  ;  2  Root, 
438. 

*  Aubuchon  v.  Lory,  23  Mo.  99. 

6  King  V.  Whiton,  15  Wis.  684; 
Hankins  v.  Kimball,  57  Ind.  42 ;  Thomp- 
son V.  Gaillard,  3  Rich,  418;  Fay  v.  Fay, 
I  Cush.  105. 

®  But,  as  to  holding  the  representative 
and  his  sureties  liable  for  misappropria- 


tion  in   case   he   assumes   control,  see 
Dix  V.  Morris,  66  Mo.  514. 

"  Drinkvvater  v.  Drinkwater,  4  Mass. 

354- 

8  Pettit  V.  Pettit,  32  Ala.  288. 

^  Cobb  V.  Muzzey,  13  Gray,  57.  See 
I  Bailey  Ch.  23;  2  Hill  Ch.  215.  An 
administrator  who  invests  assets  in  land 
and  takes  the  deed  to  himself,  though 
liable,  perhaps,  to  distributees  in  pro- 
ceedings for  devastavit,  or  so  as  to  treat 
the  land  as  assets,  may  nevertheless  con- 
fer a  legal  title  by  transfer  free  of  their 
claims  upon  the  land.  Richardson  v. 
McLemore,  60  Miss.  315.     See  §  383. 

w  Brackett  v.  Tillotson,  4  N.  H.  208. 
Where  the  administrator  is  guardian  of 
the  heir,  his  management  of  real  estate 
is  on  the  guardianship  account.  Fo- 
teaux  V.  Lepage,  6  Iowa,  123. 

11  Black  V.  Dressell,  20  Kan.  153; 
Smith  V.  Hutchinson,  108  111.  662.  Nor 
rescind  executory  contract  for  purchase 
of  land.  Gotham  v.  Britt,  10  Heisk. 
469. 


62Q 


CHAP.   I.]  TITLE,    ETC.,    TO    REAL    ESTATE.  §   S'O 

benefit  of  creditors  only  ;  as  for  heirs,  they  must  institute 
proceedings  in  their  own  interest.^  And  of  so  little  bearing 
is  the  fiduciary  character  of  an  administrator  usually  upon 
the  lands  of  his  decedent,  that  he  has  been  permitted  to  pur- 
chase at  any  such  sale  of  real  estate  ;  except  a  sale  conducted 
by  himself  as  administrator,  where,  for  instance,  the  person- 
alty was  insufficient  to  pay  debts.^  On  the  other  hand,  an 
administrator's  purchase,  whether  by  himself  or  another,  at 
his  own  sale,  is  voidable  at  the  election  of  the  heirs  or  de- 
visees.^ And  where  the  fiduciary  is  charged  with  the  sale 
of  lands  to  pay  debts,  he  ought  not  to  purchase  such  lands 
for  himself  on  an  execution  sale  against  the  decedent.* 

§  510.  Rule  where  Representative  collects  Rents,  manages, 
etc.  —  If  the  representative  takes  possession  of  the  decedent's 
real  estate,  and  collects  rents,  he  is  generally  understood  to 
hold  the  money  in  trust  for  the  devisees  or  heirs  ;  and  to  such 
parties  he  should  account  justly  for  his  management,  accord- 
ing to  their  respective  interests.^  Authority  may  be  con- 
ferred and  revoked  by  heirs  or  devisees  for  this  purpose,^  and 
the  representative  who  collects  without  their  authority  is 
liable  to  them.''  Under  the  authority  conferred  by  a  will, 
again,  the  executor  may,  of  course,  manage  his  testator's  real 
estate ;  and,  if  the  will  orders  a  special  disposition  of  rents, 
issues,  and  profits,  he  should  comply  with  its  directions.*^  In 
some  American  States,  as  we  have  seen,  liberal  provision  is 
made  for  the  management  of  a  decedent's  real  estate  by  his 


1  Richards  v.  Sweetland,  6  Cush.  ner,  62  Me.  309.  Such  matters,  includ- 
324,  per  Metcalf,  J.  See  also  Sherman  ing  taxes  assessed  on  the  land  since  the 
V.  Dodge,  28  Vt.  26;  Ford  v.  Exempt  owner's  death,  insurance,  repairs,  and 
Fire  Co.,  50  Cal.  299;   §§  220,  252.  improvements,  do  not  belong  properly 

2  Dillinger  v.  Kelly,  84  Mo.  561.  to     the     accounts     of    adniinistralion. 
8  And  this  even  though  the  probate  Lucy  v.  Lucy,  55  N.  H.  9;   Kimball  v. 

court  confirmed  the  sale.     McMillan  v.  Sumner,  62  Me.  305;   §  512  ^ 

Rushing,  80  Ala.  402.     See  next  chapter.  "  Supra,  §  212;   Griswold  v.  Chand- 

*  Marshall    v.   Carson,  38  N.  J.    Eq.  ler,  5  N.  H.  492. 

250,  and  cases  cited.  "^  Even  though  he  uses  the  money  as 

^  Supra,    §    213,    and    cases    cited;  assets  to  pay  debts  of  the  estate.    Conger 

Taylor  Landl.  &  Ten.  §  390 ;    Talmer  v.  v.  Atwood,  28  Ohio  St.  134. 

Palmer,  13  Gray,  328;   Kimball  v.  Sum-  ^  Jones's  Appeal,  3  Grant,  250. 

621 


§511  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

personal  representative,  during  the  settlement  of  the  estate  ;  * 
which  course  may  often  be  convenient,  even  though  the  per- 
sonal assets  be  ample  for  the  claims  presented. 

But  the  representative,  in  order  to  justify  himself  in  thus 
managing  the  decedent's  real  estate,  should  bring  himself 
within  the  provisions  of  the  statute,  or  the  terms  of  the  will 
under  which  he  acts,  or  show  consent  of  the  parties  inter- 
ested ;  which  consent  may  be  presumed  from  their  conduct.^ 

§  511.    Sale  of  Real  Estate  to  pay  Debts,  Legacies,  etc.  —  In 

the  English  practice,  a  power  to  sell  lands,  given  to  the 
executor  under  a  will,  is  fully  sustained.  And,  notwith- 
standing doubts  formerly  entertained,  the  English  chancery 
has  gone  so  far,  in  cases  decided  during  the  latter  half  of 
this  century,  as  to  imply  a  power  of  sale  in  executors  from  a 
charge  of  debts,  although  the  estate  was  devised  to  others.^ 
That  rule  is  made  clear  by  statute  22  &  23  Vict.  c.  35.  But, 
so  far  is  this  from  being  regarded  as  an  inherent  right  in  the 
representative,  that  an  administrator  is  recently  held  to  have 
no  such  power  to  sell  a  decedent's  real  estate  for  payment  of 
debts,  either  under  the  general  doctrines  of  chancery  or  under 
the  statute.^  Modern  English  legislation,  nevertheless,  ren- 
ders the  lands  of  a  deceased  person,  not  charged  with  his 
debts,  liable  as  assets  for  payment  of  the  same,  under  the 
administration  of  courts  of  equity ;  not  by  way  of  specifically 
charging   the  real   assets,  but  so  as  to  make  the  heirs  or 

1  U.  S.  Digest,  1st  series,  Executors  Special  exception  is  sometimes  made  in 
and  Administrators,  1272,  1278;  15  favor  of  the  representative's  authority, 
Cal.  259;  Kline  v.  Moulton,  11  Mich,  where  there  is  no  heir  or  devisee  pres- 
370;  supra,  §  213;  Flood  v.  Pilgrim,  ent  to  take  possession.  Hendrix  v. 
32  Wis.  377.     And  as  to  working  plan-  Hendrix,  65  Ind.  329. 

tations,  in  various  Southern  States  there  ^  Robinson  v.  Lowater,  5  De  G.  M. 
is  similar  legislation.  40  Miss.  71 1,  760;  &  G.  272;  21  Beav.  337;  37  Heav.  553. 
Henderson  v.  Simmons,  33  Ala.  291;  In  Sugden  Powers,  14th  Eng.  ed.  662, 
51  Ga.  647;  Johnson  v.  Parnell,  60  Ga.  note,  this  new  rule  is  regarded  unfavor- 
661.  By  virtue  of  such  local  legislation  ably  by  the  author  as  introducing  con- 
in  the  United  States,  the  administrator  siderable  difficulty  in  titles.  And  see 
contrary  to  general  law  (see  §  509)  may  Lewin  Trusts,  340. 
lease  real  property  belonging  to  the  *  Clay,  Re,  29  W.  R.  5.  Not  even  an 
estate  during  the  period  of  administra-  administrator  with  will  annexed  has  this 
tion.     66  Cal.  476.  power.     lb. 

2  Billingslea  v.  Young,  33  Miss.  95. 

622 


CHAP.  I.]  TITLE,    ETC.,    TO    REAL    ESTATE.  §   5'- 

devisees  personally  liable  to  the  extent  of  their  respective 
interests.^  The  general  principle  is,  that  creditors  of  a  dece- 
dent can  have  no  recourse  to  his  real  estate  for  satisfaction, 
unless  the  personalty  proves  insufficient. 

In  this  country,  the  sale  of  lands  to  pay  debts  of  the  dece- 
dent whose  personalty  is  found  deficient,  is  regulated  quite 
extensively  by  statutes,  in  the  nature  of  a  probate  license  to 
sell.2  With  the  real  estate,  or  its  title,  it  is  admitted  that  the 
personal  representative  has  nothing  to  do,  by  virtue  of  his 
office,  unless  the  personal  assets  prove  insufficient  for  the 
purposes  of  his  trust ;  except  under  the  special  qualifications 
already  set  forth,  by  local  statute  or  otherwise.'^ 

Sales  of  land  in  conformity  with  a  will,  in  order  to  provide 
legacies,  where  there  is  a  deficiency  in  personal  assets,  are, 
however,  permitted  both  in  English  and  American  chancery ; 
the  presumption  being  that  a  testator  intends  the  legacies 
given  by  his  will  to  be  a  charge  on  his  residuary  real  as  well 
as  his  personal  estate.'*  In  general,  an  executor  who  sells  or 
conveys  land  under  an  appropriate  power  does  not  make  him- 
self personally  liable  for  failure  of  the  title. ^ 

§  5 1 2.  Exoneration  of  Real  Estate  by  the  Personal ;  and 
Marshalling  Assets.  —  The  exoneration  of  real  estate  by  the 
personal  is  an  important  doctrine  of  equity  jurisprudence  in 
administering  estates;  the  rule  being  in  full  conformity  with 
our  general  policy,  that  wherever  the  intention  of  a  testator 

1  See  statutes  i  Wm.  IV.  c.  47,  and  3  *  Greville  v.  Browne,   7  H.  L.  Cas. 

&  4  Wm.  IV.  c.  104,  cited  Wms.  Exrs.  689;    Bench    v.    Biles,   4    Madd.    187; 

1688-1692;    I  Mac.  &G.  456;    22  Beav.  Poulson  v.  Johnson,  2  Stew.  529;   Cor- 

21;   Richardson  z/.  Horton,  7  Beav.  112.  wine  v.  Corwine,  24  N.  J.  Eq.  579;    31 

And  see  Wms.  Exrs.  1688- 1692,  as  to  N.  J.  Eq.  427.     The  right  apart  from 

the  proper  procedure   in  equity  under  statute  is  denied  in  4  Del.  Ch.  9.     See 

this  act.  Mass.  Gen.  Stats,  c.  102,  §  19;   Gibbens 

^  See  next  chapter.  v.  Curtis,  8  Gray,  392.     Where  the  will 

8  See  supra,  §  213;    5  Whart.  228,  gives  to  the  executors  a  power  to  sell 

350.  the  land  in  case  of  a  deficiency  of  assets, 

The  general  principle  is,  that  chan-  they  should  sell   under  the  power  and 

eery  has  no  inherent  jurisdiction  in  such  not  under  the  statute.     5  Dem.  (N.  Y.) 

matters,    except    for    enforcing    some  14,  251. 

specific  lien  or  right  in  the  land.    Wms.  *  Twitty   v.  Lovelace,   97  N.  C.   54. 

Exrs.   650;    supra,    §   212,   and    cases  And  see  §  515. 
cited. 

623 


§512^  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

does  not  clearly  conflict  with  such  an  interpretation,  real  estate 
shall  be  applied  to  debts,  legacies,  and  charges,  only  so  far  as 
personal  assets,  the  primary  fund,  prove  insufficient,  not- 
withstanding mere  directions  in  the  will  to  sell  or  mortgage 
for  such  purposes.^  Marshalling  the  assets  in  favor  of  credi- 
tors and  legatees,  is  the  chancery  method  of  causing  the  whole 
property,  real  and  personal,  of  a  decedent,  to  be  so  applied 
among  claimants,  that  all  equities  shall  be  preserved  accord- 
ing to  due  order.^ 

§  512  «.    Dealing  with  Mortgages  on  Real  Estate.  —  Where, 

after  the  death  of  a  beneficiary  under  a  will,  the  executor,  in 
order  to  save  the  expense  of  a  foreclosure,  takes  a  conveyance 
of  the  premises  covered  by  a  mortgage  belonging  to  the  estate, 
he  must  account  therefor  as  personalty  to  the  administrator 


1  Walker  v.  Hardwicke,  I  My.  &  K. 
396;  I  Sim.  84;  Van  Vechten  v.  Keator, 
63  N.  Y.  52;  Wms.  Exrs.  1705.  As 
this  rule,  after  all,  is  subject  to  proper 
expressions  of  testamentary  intention, 
numerous  subtle  refinements  are  found 
in  the  decisions  which  interpret  this  in- 
tention. See  Wms.  Exrs.  1694-1712, 
and  Perkins's  notes,  where  this  question 
is  examined  at  length. 

American  cases  admit  the  general 
maxims  of  exoneration;  and  hence  the 
rule,  supported  by  numerous  American, 
as  well  as  English,  equity  decisions, 
that  debts  contracted  by  a  testator, 
although  secured  by  mortgage,  are  to 
be  paid  presumaVjly  out  of  his  personal 
property  to  the  exoneration  of  his  real 
estate.  Supra,  §  430;  Sutherland  v. 
Harrison,  86  111.  363;  Plimpton  v. 
Fuller,  II  Allen,  140;  Tovvle  v.  Swa- 
sey,  106  Mass.  100;  McLenahan  z/.  Mc- 
Lenahan,  3  C.  E.  Green,  loi ;  2  Salk. 
449;  Howel  V.  Price,  I  P.  Wms.  292; 
Wms.  Exvs.  1694-1697,  and  cases  cited. 
But  this  is  an  equitable  doctrine  with 
many  reservations,  and  the  late  English 
stats.  17  &  18  Vict.  c.  113,  and  30  &  31 
Vict.  c.  69,  pronounce  against  such  a 
rule  of  interpretation.  The  New  York 
statutes    likewise    discountenance   such 


presumptions ;  and,  in  that  State,  a  mort- 
gage debt  is  primarily  charged  upon  the 
real  estate  mortgaged,  unless  a  will 
clearly  directs  otherwise;  which  seems 
the  fairer  doctrine  on  this  subject.  Wal- 
dron  V.  Waldron,  4  Bradf.  Sur.  II4; 
Van  Vechten  v.  Keator,  63  N.  Y.  52. 

2  See  Wms.  Exrs.  1 713-1720,  and 
numerous  cases  cited;  i  Story  Eq.  Jur. 
§  558  etseq.  In  the  United  States,  gen- 
erally, by  statute,  all  the  property  of  the 
deceased,  real  and  personal,  is,  in  equity, 
to  be  applied  as  follows,  when  no  stat- 
ute or  express  will  prescribes  a  different 
order  of  application,  exhausting  all  the 
assets  of  each  class  before  proceeding 
to  the  next:  (l)  The  general  personal 
estate.  (2)  Real  estate  specially  de- 
vised for  the  payment  of  debts.  (3) 
Real  estate  descended.  (4)  Real  estate 
devised,  though  charged.  4  Kent  Com. 
421.  And  see  supra,  §  490;  2  Jarm. 
Wills,  588-590;  Wms.  Exrs.  1693,  Per- 
kins's note;  Perry  Trusts,  §  566.  While 
creditors  are  not  confined  to  this  gen- 
eral order,  legal  representatives,  heirs, 
legatees,  and  devisees  have  rights  for 
relief  against  each  other  in  case  the  true 
order  is  disarranged.  Perry  Trusts, 
§566. 


624 


CHAP.   I.]  TITLE,    ETC.,    TO    REAL    ESTATE.  §   512^ 

of  such  deceased  beneficiary ;  but  otherwise  as  to  lands 
acquired  under  foreclosure  and  brought  in  to  protect  the 
estate  before  such  beneficiary's  death. ^ 

§  ^12  b.  Charges  and  Allowances  'with  reference  to  Real 
Estate.  —  Dealings  with  real  estate  so  far  as  appropriate,  may 
justify  special  charges  and  allowances  or  a  higher  rate  of  com- 
missions to  the  fiduciary  than  is  usual  in  administration.^ 
He  may  thus  be  allowed  for  a  salary  paid  a  collecting  agent  ;^ 
for  a  broker's  fee  in  procuring  a  sale  ;  *  and  for  taxes,  water 
rates,  repairs,  or  insurance,  upon  the  principles  already  dis- 
cussed.^ 

1  Barclay  w.  Cooper,  42  N.  J.  Eq.  516.     chargeable  on  land  before  an  owner's 
See  supra,  §  214.  death  may  well  be  paid  by  his  executor 

2  See  Part  VIL,  c.  2.  or  administrator,  but  not  those  usually 
8  Dey  V.  Codman,  39  N.  J.  Eq.  258.  which  are  charged  after  his  death. 
*  Dey  V.  Codman,  supra.     And  see     Supra,  §  428,  and  cases  cited  in  notes; 

Stone  V.  Strong,  42  Ohio  St.  53.  Lucy  v.  Lucy,  55  N.  H.  9 ;   Kimball  v. 

5  See  supra,  §§  212,  213,  428.     We     Sumner,  62  Me.  305.     So  as  to  insur- 
have  observed  that  taxes  and  water  rates     ance.     lb. 

625 


§513  EXECUTORS   AND   ADMINISTRATORS.  [PART  VI. 


CHAPTER   II. 

STATUTE    SALES    OR    MORTGAGES    UNDER   JUDICIAL    LICENSE. 

§  5I3-  Modern  Legislation  permitting  Sales  under  a  Judicial 
License.  —  In  the  United  States  are  various  modern  enact- 
ments, of  strictly  local  application,  by  virtue  of  which  execu- 
tors and  administrators,  like  other  fiduciaries,  may  be  judi- 
cially licensed  to  sell  real  estate  in  special  cases,  where  the 
welfare  of  interested  parties  requires  it,  and  they  have  no  ade- 
quate authority  otherwise.  In  the  present  instance  the  usual 
object  of  a  license  is,  in  the  course  of  administration,  to  pay 
debts  and  legacies,  where  the  personal  estate  of  the  deceased 
person  proves  insufficient  for  such  purposes,^  including  the 
reasonable  costs  and  expenses  of  settling  the  estate.^  In 
American  practice  the  probate  court  is  usually  invested  with 
an  appropriate  statute  jurisdiction  ;  for  such  relief  the  execu- 
tor or  administrator  presents  his  petition  for  a  license,  repre- 
senting the  facts  essential  to  the  case ;  and  the  license  being 
granted,  its  terms  must  be  strictly  pursued.  In  the  execution 
of  a  statute  power  like  this,  the  terms  of  the  legislative  grant, 
with  its  limitations,  should,  like  the  power  conferred  by  a  tes- 
tator under  his  will,  be  carefully  observed  by  the  court  which 
issues  the  license,  and  by  the  representative  who  sells  under 
it.^  And  if  the  statute  made  can  be  pursued  with  advantage 
for  such  purposes,  equity  should  take  no  jurisdiction  of  the 
case,*  nor  interfere  with  the  sale  made  in  proper  pursuance 
of  the  license.^ 

^  Recent  statutes,  however,  authorize  circumstances,  where  there  are  no  known 

sales    and    mortgages  by   license    of  a  heirs.     Mass.  Pub.  Stats,  c.  131,  §   li. 

court  for  other  purposes,  as,  for  instance,  As  to  sales  by  foreign  representatives, 

to  discharge  contingent  interests  in  an  see  Mass.  Pub.  Stats,  c.  134,  §  16. 

estate.     See   Mass.   Pub.  Stats,  c.  142.  2  See  40  N.  J.  Eq.  173. 

Or  to  sell  or  release  a  cemetery  lot.    lb.  ^  Mass.  Pub.  Stats,  c.  134. 

Or  where  the  power  under  a  will  was  *  Springfield  v.  Hurt,  15  Fed.  R.  307. 

dependent  upon  the  consent  of  a  person  ^  Johnson  v.  Holliday,  68  Ga.  81. 
since  deceased.     lb.     Or,  under  certain 

626 


CHAP.  II.]   STATUTE  SALES,  ETC.,  OF  kEAL  ESTATE.    §514 

§  514-  License  restricted  to  such  Laud  as  may  be  needful  ; 
Rights  of  Heirs  and  Devisees  respected  ;  Qualifications  of  Rule, 
etc.  —  A  license  to  sell  land,  for  the  payment  of  debts  and 
legacies,  is  usually  restricted  to  the  actual  necessities  of  the 
estate  upon  the  exhaustion  of  personal  assets  ;  though  such 
statutes  provide  that,  where,  by  a  partial  sale  of  land,  the 
residue  or  some  specific  part  would  be  greatly  injured,  the 
court  may  license  a  sale  of  all  or  of  such  part  as  may  appear 
to  be  most  for  the  interest  of  all  concerned.^  Nor  are  the 
rights  of  heirs  and  devisees  to  be  ignored  ;  but  they  should 
have  due  notice  of  the  petition,  and  opportunity  to  avert  the 
necessity  of  a  sale ;  as,  perhaps,  by  making  up  the  deficiency 
themselves.  But,  by  our  legislative  policy,  real  estate  de- 
scends to  heirs,  or  goes  to  devisees,  subject  to  administration 
and  the  due  settlement  of  debts  and  legacies,  and  this  liability 
continues  against  not  only  such  parties,  but  purchasers  from 
them,  until  the  administration  is  closed  ;2  and  where  there 
exist  lawful  claims  and  insufficient  personal  assets  to  meet 
them,  it  is  the  duty  of  the  representative  to  apply  for  a 
license,  and  of  the  court  to  grant  it.^ 

Until  the  will  is  proved  or  letters  of  administration  are 
granted,  the  court  is  without  jurisdiction  to  order  a  sale  of 

^  Mass.  Pub.  Stats,  c.   134;   90  N.  C.  the  land  under  statute  license  for  pay- 

551.     The  orphans'  court,  as  such  stat-  ment  of  legacies.     And  see  §  407.     But 

utes  usually  run,  cannot  order  to  be  sold  an  executor  and  residuary  legatee  who 

for  debts  an  equitable  interest  of  the  de-  has  given  bond  to  pay  debts  and  legacies 

cedent  in  land  under  a  contract  of  sale,  cannot    be   licensed   to   sell  land.     133 

Hendrickson  v.  Hendrickson,  41  N.  J.  Mass.  447,  §   138.     A  sale  or  mortgage 

Eq.  376.  by  heirs  or  devisees,  before  administra- 

But  jurisdiction  to  grant  a  license  ex-  tion  has  proceeded  far  enough  to  settle 

isting,  the  bond  fide  purchaser's  title  is  or    bar    out    claims,    leaves    the    land 

not  to  be  affected  by  collateral    facts,  meanwhile  with   a  sort  of  cloud  upon 

which,  if    known    to   the  court,  might  the  title;    but  after  administration   has 

have  prevented  the  license  from  being  been    fairly    completed,   such    sale    or 

granted.  mortgage  would  be  practically  clear  of 

^  State  V.  Probate  Court,  25  Minn.  22.  the    incumbrance.       An    administrator 

^  Whether  a  surviving  spouse's  inter-  cannot   sell    the    land   of   his   intestate 

est  in  the  decedent's  real  estate  can  thus  while  it  is   held  adversely  by  another, 

be  sold,  see  107  Ind.  121.  without  proceedings  for  possession.     68 

See    Smith   v.  Wells,  134  Mass.   il,  Ga.  81.    And  see  67  Ala.  173;  51  Mich, 

where,  after  a  residuary  legatee's  death  360.     There  may  be  a  sale  at   the  in- 

who  was  also  executor,  the  only  property  stance  of  an  administrator  de  bonis  non. 

consisting  of  a  farm,  an  administrator  83  Ind.  41 1;   59  Tex.  172. 
with  will   annexed  was  allowed  to  sell 

627 


§515 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 


land  in  aid  of  assets.^  But  after  this  jurisdiction  attaches, 
application  should  be  made  for  license  to  sell  within  a  reason- 
able time  after  the  condition  of  the  estate  can  be  ascertained  ; 
nor  should  the  court  on  the  other  hand  delay  its  permission 
to  sell  upon  any  hypothetical  regard  for  personal  assets  which 
are  practically  unavailable  for  an  adjustment  as  prompt  as 
creditors  of  an  estate  have  usually  the  right  to  expect.'^ 
Heirs  and  devisees  cannot  prevent  a  license  from  issuing  in  a 
suitable  case'^  on  the  representation  of  the  fiduciary,  though 
they  might  save  the  land,  perhaps,  if  no  other  urgency  existed, 
by  averting  the  necessity  for  a  sale. 

I  515-  Legislative  Provisions  as  to  Sale;  Essentials  of  a  Pur- 
chaser's Title.  —  The  local  statutes  provide  in  detail  the 
method  of  procuring  a  license  to  sell,  and  of  acting  under 
it.*  Any  surplus  proceeds  which  may  remain,  after  satisfying 
the  purposes  of  the  sale,  belong  to  the  heirs  or  devisees,  as 
though  impressed  with  the  original  character  of  the  property.* 


1  Whitesides  v.  Barber,  24  S.  C.  373. 

2  A  petition  for  a  license  was  denied 
where  the  creditois  had  been  culpably 
negligent  in  applying  for  the  appoint- 
ment of  an  administrator.  63  N.  H. 
29.  And  see  as  to  long  delay  justifying 
an  injunction  against  the  sale.     86  Mo. 

253- 

8  75  Ala.  335. 

*  American  statutes  have  usually  the 
following  points  in  common:  (l)  an 
application  to  the  court,  upon  which  the 
license  is  granted;  (2)  a  special  bond 
covering  such  proceeds  of  the  sale  as 
may  be  realized ;  (3)  the  formal  sale 
of  the  land,  usually  at  public  auction; 
(4)  the  execution  of  a  deed  with  proper 
recitals  to  the  purchasers,  covenanting 
that  the  representative's  sale  has  been 
legal  and  upon  due  authority;  (5)  a 
proper  apphcation  of  the  proceeds  aris- 
ing from  the  sale.  As  to  warranty,  the 
bona  fides  of  a  sale,  the  right  of  a  repre- 
sentative to  purchase,  etc.,  the  maxims 
set  forth,  supra,  §  361,  as  to  sales  of 
personal  property,  have  here  a  corre- 
sponding application.     See  U.  S.  Dig. 


1st  series,  Executors  and  Administra- 
tors, 1409-1652;  local  codes  and  de- 
cisions; 2  Sugd.  Vend.  &  P.  8th  Am. 
ed.  714,  note;  Wms.  Exrs.  650,  and 
Perkins's  notes.  A  sale  may  be  ad- 
journed like  other  such  sales.  41  N.  J. 
Eq.  515.  But  if  the  representative  un- 
reasonably delays  availing  himself  of  his 
Ucense,  recourse  should  be  had  to  the 
court  which  issued  the  license.  105 
Penn.  St.  315.  Confirmation  refused 
by  the  court  where  the  price  was  grossly 
inadequate  though  the  sale  was  fairly 
conducted  in  other  respects.  8oVa.  695. 
Some  codes  require  confirmation,  others 
do  not. 

A  sale  and  deed  by  an  administrator 
who  acts  under  a  void  appointment  are 
void.  Allen  v.  Kellam,  69  Ala.  442 ;  §  1 60. 

The  doctrine  of  caveat  emptor  applies 
to  such  sales,  and  the  purchaser  cannot 
renounce  his  bid  or  repudiate  and  get 
back  his  purchase-money,  because  of 
defective  title  in  the  absence  of  any 
fraud  by  the  executor  or  administrator. 
Tilley  v.  Bridges,  105  111.  336;  Jones  v. 
Warnock,  67  Ga.  484;  67  Ala,  508.    Or 


628 


CHAP.  II.]   STATUTE  SALES,  ETC.,  OF  REAL  ESTATE.   §  5I5« 

As  to  the  essentials  of  a  purchaser's  title,  the  terms  of  the 
statute  must  furnish  the  guide  ;  and  while  merely  incidental 
irregularities  may  be  cured  by  the  completion  or  confirmation 
of  the  sale,  there  must  have  been  jurisdiction  in  the  court, 
and  a  substantial  compliance  with  the  fundamental  require- 
ments of  the  statute,  both  in  granting  the  license  and  in 
pursuing  it.^  The  representative  warrants  nothing  in  the 
title  of  the  land;  nor  is  it  for  him  to  remove  incumbrances  ;2 
and  even  should  he  thus  covenant  he  will  not  bind  the  estate 
but  himself.^ 

§  515  ^-  ^^®  same  Subject ;  Principal  and  Ancillary  Jurisdic- 
tions. —  It  is  no  objection  to  an  order  for  the  statutory  sale  of 
real  estate  in  one  State  to  pay  debts,  that  there  was  personal 
property  in  the  State  of  principal   administration   suflficient 


even,  as  it  is  held,  where  the  fiduciary 
fraudulently  asserted  that  there  was  no 
incumbrance.  Riley  v.  Kepler,  94  Ind. 
308. 

The  purchaser's  title,  as  against  heir 
or  devisee,  dates  from  the  sale  or  the 
court's  confirmation  of  the  sale,  or  the 
execution  of  the  conveyance,  according 
to  the  intendment  of  the  local  statute. 
In  some  Staies  the  fiduciary  executes 
his  own  conveyance,  conformably  to  the 
terms  of  sale;  in  other  States,  the  con- 
veyance is  executed  by  order  of  the 
court. 

^  Local  decisions  in  construction  of 
local  statutes  will  afford  to  the  practi- 
tioner the  true  rules  of  guidance.  The 
main  question  is  one  of  statute  interpre- 
tation :  as  to  what  provisions  in  fact 
shall  be  regarded  as  imperative,  and 
what  as  merely  directory.  The  disposi- 
tion is  to  regard  an  infirm  sale  as  void- 
able at  the  election  of  those  injured  by 
it,  rather  than  to  pronounce  it  utterly 
null  and  void,  where  there  was  jurisdic- 
tion and  all  statute  provisions  plainly 
imperative  were  followed.  On  the  ques- 
tion of  confirmation  of  the  sale  only 
those  questions  which  the  statute  treats 
as  material  can  be  considered  by  the 
court. 

629 


2  Supra,  §  212;  Le  Moyne  v.  Quim- 
by,  70  111.  399;  Ives  v.  Ashley,  97  Mass. 
198;   2  Sugd.  V.  &  P.  687,  note. 

3  Hale  V.  Marquette,  69  Iowa,  377. 
Where  an  administrator  sold  land  with- 
out leave  of  court  and  applied  the  pur- 
chase-money to  the  payment  of  debts, 
the  purchaser  was  subrogated  to  the 
rights  of  the  creditors  who  had  been 
thus  paid,  but  no  further  lien  was  al- 
lowed him.  Duncan  v.  Gainey,  108 
Ind.  579. 

After  long  lapse  of  time  from  the  sale 
under  a  license,  every  reasonable  intend- 
ment will  be  resorted  to,  to  uphold  the 
regularity  of  the  proceedings.  Starr  v. 
Brewer,  58  Vt.  24.  An  action  to  set 
aside  such  a  sale  as  fraudulent  and  void 
and  to  compel  the  fiduciary  to  perform 
a  trust  charged  on  the  land  is  a  matter 
of  equity  jurisdiction.  Caldwell  7'.  Cald- 
well (Ohio).  Formal  defects  cured  by 
retrospective  legislation.  66  Iowa,  552. 
Under  the  Ohio  statute,  the  costs  and 
expenses  of  the  sale  of  incumbered  real 
estate  take  precedence  of  mortgages  and 
other  liens.    42  Ohio  St.  53. 

As  to  the  adjustment  of  assessed 
taxes,  see  Fessenden's  Appeal,  77  Me. 


§517  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

for  their  payment ;  for  courts  and  creditors  of  the  local  site 
are  not  compelled  to  forego  thus  their  just  advantage.^ 

§  516.  Judicial  License  to  Mortgage  Real  Estate  for  Certain 
Purposes.  —  In  connection  with  the  payment  of  debts,  lega- 
cies, and  charges,  or  for  other  stated  purposes,  a  personal 
representative  may,  as  some  American  statutes  provide,  be 
licensed  to  mortgage  real  estate  of  his  decedent. ^  But  the 
statute  should  be  explicit,  for  the  right  to  sell  does  not  imply 
the  right  to  mortgage  the  realty.^ 

§  5 1 7.  Levy  of  Execution  obtained  against  the  Representa- 
tive. —  In  some  States,  lands  may  be  subjected  to  the  pay- 
ment of  claims  against  the  estate,  by  levying  thereon  an 
execution  obtained  against  the  personal  representative.* 

1  Lawrence's  Appeal,  49  Conn.  411.        of  probate,  sells  and  conveys  an  equity 
An  executor  before  selling  ought  to     of  redemption  in  lands  whereof  he  is 

make  sure  that  he  has  complied  with  the  seised  of  the  unincumbered  fee,  nothing 

lex  rei  sitce  as  to  probate  of  the  will,  passes  by  his  deed.    Bradley  v.  Simonds, 

60  Tex.  353.  61  N.  H.  369.     But  a  mortgagor's  equity 

2  Mass.  Pub.  Stats,  c.  134,  §§  19,  20.  of  redemption  is  liable  to  sale;  his  lands 
These  statutes  are  quite  strict  in  expres-  after  his  death  may  be  sold  subject  to 
sion,  and  rarely  apply  in  favor  of  a  gen-  the  incumbrances  he  created.  67  Ala. 
eral  administrator;    the  license  to  sell  508. 

enabling  him  sufficiently  to   discharge  *  4  Allen,  417;  5  Watts,  367;   14  Me. 

his  official  functions.  320.     But  this  course  is  not  universally 

3  See  114  Penn.  St.  618.  If  an  ad-  permitted  in  this  country.  See  16  111. 
ministrator,  under  a  license  from  a  judge  318;   Wms.  Exrs.  651,  Perkins's  note. 

630 


PART  VII. 

ACCOUNTING   AND   ALLOWANCES. 


CHAPTER   I. 

ACCOUNTS    OF   EXECUTORS    AND    ADMINISTRATORS. 

§  518.  Obligation  to  keep  Accounts ;  Equitable  Jurisdiction 
in  England.  —  An  executor  or  administrator  is  bound  to  keep 
clear,  distinct,  and  accurate  accounts  of  his  management  of 
the  estate  committed  to  him,  like  any  trustee,  which  accounts 
ought  in  some  way  to  be  open  to  the  inspection  of  persons 
interested  in  the  estate.^  Upon  the  analogies  of  trusteeship, 
English  courts  of  equity  long  exercised  a  jurisdiction  over 
such  matters,  while  the  powers  of  spiritual  tribunals  appeared 
inadequate  either  for  compelling  the  personal  representative 
to  administer  the  estate  or  to  disclose  the  course  of  his  deal- 
ings with  it.  Among  the  various  functions  of  chancery, 
therefore,  has  been  that  of  entertaining  a  bill  of  discovery 
against  the  personal  representative,  and  forcing  him  to  set 
forth  an  account  of  the  assets  and  the  manner  in  which  he 
has  applied  them.^  Upon  the  admitted  justice  and  policy  of 
such  coercion,  and  the  confessed  inadequacy  of  all  other 
tribunals  to  apply  it,  the  lord  chancellors  firmly  rested  their 
authority.  Nor  did  they  defer  to  the  ordinary  himself  in 
these  proceedings ;  for  a  bill  might  be  brought  in  chancery, 
for  the  discovery  of  assets,  before  a  will  had  been  proved  in 
the  spiritual  courts,  and,  indeed,  while  probate  litigation  was 
pending ;  they  did  not  deem  it  needful  to  wait  until  an  ex- 
ecutor had  received  his  letters  testamentary,  provided  a  trust 

1  Freeman  v.  Fairlee,  3  Mer.  43;  2  Howard  v.  Howard,  I  Vern.  134; 
Perry  Trusts,  §  821;  Rhett  v.  Mason,  Brooks  v.  Oliver,  Ambl.  406;  Wms. 
18  Gratt.  541.  Exrs.  2005,  2006;  Story  Eq.  Jur.  §  534. 

631 


§  519  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

of  some  sort  could  be  alleged  and  proved  against  him  ;  and 
even  though  an  administrator's  accounts  had  been  passed 
and  distribution  ordered  in  the  ecclesiastical  forum,  chancery 
might  at  discretion  re-investigate  and  direct  an  accounting 
de  novo} 

§  519.  The  same  Subject ;  Creditors' Bills,  etc. ;  English  Prac- 
tice. —  Proceedings  of  this  character  were  usually  brought 
by  what  was  known  as  a  creditors'  bill.  One  or  more  credi- 
tors of  the  estate  would  file  a  bill  in  chancery  on  behalf  of 
themselves  and  all  others  who  might  be  brought  in  under  the 
decree,  with  the  intent  of  preventing  any  undue  preferences 
by  the  executor  or  administrator  in  the  payment  of  claims, 
and  causing  all  the  assets  to  be  brought  in  and  appropriated 
in  a  due  course  of  settlement. ^  If  assets  were  admitted  by  the 
representative,  and  the  petitioner's  debt  proved,  immediate 
payment  therefor  was  ordered  ;  ^  otherwise,  a  general  account 
of  the  estate,  and  all  debts  and  claims  upon  it,  was  taken 
against  the  executor  or  administrator,  and  an  appropriation  of 
the  fund  directed  accordingly.*  As  one  creditor  might  thus 
institute  proceedings  which  would  bring  in  all  the  other  credi- 
tors besides,  so  one  or  more  legatees  or  distributees  might, 
on  behalf  of  themselves  and  all  others  similarly  concerned, 
invoke  the  aid  of  chancery  with  corresponding  effect.^  And 
yet,  complicated  and  costly  as  might  be  the  process  for  work- 
ing out  such  results,  none  were  conclusively  bound  by  the 
final  decree,  who  had  not  been  brought  within  the  scope  of 
the  suit  ;  and  absent  creditors,  legatees,  or  distributees,  who 
had  been  guilty  of  no  laches  in  failing  to  respond  and  becom- 
ing parties  to  the  bill  in  equity,  might  afterwards  assert  their 
claims,  not,  indeed,  against  the  executor  or  administrator 
himself,  but  for  contribution  from  the  creditors,  legatees,  or 


1  2  Vern.  47,  49;   Phipps  v.  Steward,  Coope   v.  Carter,  2  De    G.  M.   &  G. 

I  Atk.  285;   2  Chanc.  Cas.  198.     Some  292. 

wilful  neglect  or  default  with  respect  to  ^  See  supra,  §  437. 

assets  was  usually,  however,  to  be  al-  ^  Woodgate  v.  Field,  2  Hare,  211. 

leged    and    shown,    as    the    ground    of  *  Wms.  Exrs.  2007;    I   Russ.  &  My. 

invoking  chancery  remedies  in  cases  of  347. 

this    kind.      Wms.    Exrs.    2006,    note;  *  lb. 

632 


CHAP.  I.]  ACCOQNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §519 

distributees,  who  had  obtained  at  much  cost  what  they  had 
supposed  their  own.^ 

The  natural  tendency  of  all  this  must  have  been,  to  make 
practical  waste  of  the  assets,  while  theoretically  assuming  to 
save  them  ;  to  bury  the  better  part  of  an  estate  in  a  whole- 
sale litigation,  lest  one  should  be  preferred.  Under  English 
enactments  during  the  reign  of  Victoria,  some  of  the  most 
serious  objections  to  these  prolix  and  costly  proceedings  have 
been  removed  ;  the  creditor,  legatee,  or  distributee  who  peti- 
tions, has  now  become,  in  a  measure,  the  master  of  his  own 
suit,  pending  a  decree,  and  need  not  serve  the  others  in 
interest :  chancery  exercises  authority  with  apter  discretion  ; 
and  a  suit  may  more  readily  terminate,  as  such  suits  often 
do,  in  the  settlement  or  compromise  of  the  petitioner's  indi- 
vidual demand,  the  proceedings  for  administration  and  a  full 
account  in  chancery  being  consequently  dropped. ^  Never- 
theless, the  English  equity  courts  are  still  much  exercised 
with  creditors'  bills  and  suits  for  administration ;  ^  and,  as 
incidental  thereto,  the  taxation  of   costs*  appears  to  be  an 

1  David  V.  Frowd,  i  My.  &  K.  200 ;  some  circumstances,  must  be.  24  W.  R, 
Wms.  Exrs.  1450,  2008.     Members  of  a     269. 

class  only  contingently  entitled  to  a  ben-         ^  See,  e.g.,  among  very  recently  report- 

efit  under  the  will  cannot  maintain  an  ed  English  cases,  involving  questions  of 

administration  suit.     Clowes  v.  Ililliard,  costs,  etc.,  L.  R.  10  Ch.  D.  46S;   L.  R.  7 

25  W.  R.  224.  Ch.  D.  2,i,  176;  26  W.  R.  165  ;  29  W.  R. 

2  Stats.  15  &  16  Vict.  c.  86;  22  &  23  420,821;  Moore  j/.  Dixon,  L.R.  15  Ch.D. 
Vict.  c.  35  ;  2  Hare,  213;  Wms.  Exrs.  566.  And  as  to  awarding  costs  where  ex- 
2008  et  seq.  See  also  equitable  reme-  ecutors  had  distributed  to  wrong  parties 
dies,  post.  And  see  Nayler  v.  Blount,  and  returned  incorrect  accounts,  etc., 
27  W.  R.  865  ;  Laming  J/.  Gee,  27  W.  R.  see  25  W.  R.  161;  also  24  W.  R.  51, 
227;  Wollaston  v.  WoUaston,  L.  R.  7  as  to  his  error  or  wilful  mistake.  Where 
Ch.  D.  58.  it  is  probable  that  the  estate  will  prove 

8  In  Wms.  Exrs.  2008  et  seq.,X\\Q  sub-  insolvent,  the  judgment  in  a  creditor's 
ject  will  be  found  discussed  at  length,  action  should  contain  provision  for  that 
with  numerous  citations.  Where  an  ac-  emergency.  44  L.  T.  547.  Costs  of  an 
count  of  assets  is  thus  sued  for,  the  administration  suit  are  sometimes  pay- 
personal  representative  of  a  former  rep-  able  out  of  a  particular  fund  designated 
resentative  of  the  estate  is  properly  by  the  will.  44  L.  T.  499;  Sharp  v. 
joined  as  a  co-defendant  with  the  repre-  Lush,  L.  R.  10  Ch.  D.  40,  46S ;  Penny 
sentative  then  in  office.  Wms.  Exrs.  v.  Penny,  L.  R.  11  Ch.  D.  440.  Inter- 
2014;  Holland  v.  Prior,  I  My.  &  K.  rogatories  may  be  put  to  the  defendant 
237.  And  as  to  co-executors,  see  L.  R.  executor  as  to  the  accounts.  44  L.  T. 
10  Ch.  464.     The  suit  may  be  brought  547. 

still  on   behalf  of  other  creditors,  etc.  As  to  commencing  such   actions  by 

Eyre  v.  Cox,  24  W.  R.  317.   And,  under  next  friend  on  behalf  of  infants  inter- 


§  520  EXECUTORS    AND   ADMINISTRATORS.  [PART  VII. 

absorbing  cause  of  dispute.  And,  after  all,  though  one  may 
get  his  debt  or  legacy  paid,  he  cannot  readily  obtain  an 
inspection  of  the  administration  accounts. 

§  5-0.  The  same  Subject;  Creditors'  Bills,  etc.,  in  American 
Practice.  —  In  various  instances,  few  of  which  are  very  recent, 
the  equity  courts  of  American  States  have  entertained  bills 
filed  by  creditors  and  others  in  interest,  who  seek  an  account- 
ing from  the  executor  or  administrator,  in  connection  with 
the  enforcement  of  their  individual  rights  in  the  disburse- 
ment or  distribution  of  the  assets.  And,  wherever  the  pro- 
bate and  common-law  courts  are  found  incompetent,  in  any 
State,  to  afford  the  relief  thus  sought,  a  court  of  equity,  as 
such  courts  are  usually  constituted,  may,  perhaps,  compel 
the  executor  or  administrator  to  account  for,  administer,  and 
distribute  the  property  entrusted  to  them.^ 

But,  in  the  United  States,  modern  probate  practice,  as 
extended  by  our  local  legislation,  affords,  usually,  all  the 
facilities  now  needful  for  compelling  a  duly  qualirfied  personal 
representative  to  account  for  his  management  of  the  estate 

ested,  see  25  W.  R.  873.  A  receiver  was  not  alleged  that  insufficient  security 
may  be  appointed  on  motion  in  credi-  had  been  given  by  the  representative, 
tors'  actions.  26  W.  R.  434.  Official  2  P.  &  H.  225.  In  Morgan  v.  Rotch, 
referees  are  also  appointed.  See  29  W.  97  Mass.  396,  it  is  held  that  a  suit  in 
R.  821.  And  see  passim,  Wms.  Exrs.  equity,  charging  the  executor  with  con- 
2008  el  seq. ;  supra,  §  437.  duct  in  violation  of  his  trust,  is  not  sus- 
1  Colbert  v.  Daniel,  32  Ala.  314  ;  tainable  where  he  has  not  yet  rendered 
Cram  v.  Green,  6  Ohio,  429;  2  Hayw.  a  final  account  in  the  probate  court. 
163;  Wright  V.  Lowe,  2  Murph.  354;  And  see  Garrett  v.  Stilwell,  10  N.  J.  Eq. 
Rogers  v.  King,  8  Paige,  210.  This  313.  Stale  demands  are  not  to  be  re- 
jurisdiction  appears  to  be  reluctantly  opened.  35  Ark.  137.  But  a  bill  filed 
taken  in  most  States,  if  taken  at  all.  by  one  who  was  no  party  to  a  final  set- 
Thus,  an  executor,  who  was  also  an  tlement  in  the  probate  court  may  treat 
agent  or  trustee  of  the  decedent  during  it  as  null,  and  invoke  a  court  of  equity 
his  life,  cannot,  after  the  final  settlement  to  compel  a  full  account.  5  Cal.  58. 
of  his  accounts  in  the  orphans'  court,  be  Legatees  and  next  of  kin  should  not  be 
called  upon  to  account  separately  as  a  joined  as  parties.  53  Md.  550.  And  a 
trustee  in  equity.  Vanmeter  v.  Jones,  creditor  cannot  bring  a  bill  to  have  an 
3  N.  J.  Eq.  520.  An  txtc\xior  pro  forma  account  taken  for  his  own  benefit,  apart 
need  only  account  for  the  surplus  re-  from  other  creditors.  2  N.  J.  Eq.  133. 
maining  after  paying  debts.  2  Har.  &  See  5  Rand,  195;  3  Sm.  &  M.  329;  I 
J.  191.  Order  for  an  account  has,  in  Sandf.  Ch.  399;  3  Johns.  Ch.  578;  Gar- 
some  cases,  been  dechned  after  a  long  vin  v.  Stewart,  59  111.  229. 
interval.     8  Ired.  Eq.  141.     Or  where  it 

634 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  $20 

confided  to  him  ;  and  that  by  a  process  comparatively  inex- 
pensive and  simple,  founded  upon  the  duty  he  owes  under  his 
bond.  As  we  shall  presently  show,  in  detail,  the  probate 
court,  which  controls  the  appointment  and  removal  in  the 
first  instance,  has  become,  in  most  of  the  United  States,  the 
competent  and  convenient  primary  forum  for  his  accounting ; 
an  appeal,  of  course,  lying  to  the  supreme  probate  and  equity 
tribunal  of  the  State,  as  from  other  probate  decrees.  The 
American  rule  of  the  present  day  is,  therefore,  with  few  excep- 
tions, that  the  court  of  chancery,  usually,  has  neither  jurisdic- 
tion nor  occasion  to  interfere  in  the  settlement  of  the  estate, 
and  to  order  an  accounting  by  an  executor  or  administrator.^ 
And,  even  as  to  one  who  has  resigned  or  been  discharged 
from  his  trust,  our  law  inclines  to  treat  him  as  one  whose 
accounts  should  be  closed  under  probate  direction,  as  in  the 
case  of  one  who  has  died  in  ofifice.^ 

In  a  few  American  States,  however,  where  chancery  juris- 
diction is  plenary,  equity  and  probate  courts  appear  to  exer- 
cise a  sort  of  concurrent  jurisdiction  as  to  the  accounts  of 
executors  and  administrators.^  And  where  it  becomes  neces- 
sary to  apply  to  a  court  of  equity,  as,  for  instance,  should  the 
personal  representative  himself  ask  for  necessary  instructions 
as  to  the  final  distribution  under  a  will,  that  court,  some- 
times —  having  all  parties  before  it,  by  means  of  personal  or 


1  Jones  z/.  Irwin,  23  Miss.  361;   Mor-  1931,    Perkins's    note;     I    Nott   &    M. 

gan  V.  Rotch,  97  Mass.  396;  Walker  v.  (S.  C.)  587. 

Cheever,    35    N.    H.    345;    Adams    v.  ^  C{.  Gould  v.  Hayes,   19  Ala.  438; 

Adams,  22  Vt.  50;    Wms.  Exrs.  2006,  8  Sm.  &  M.  214;   33  Miss.  560.     And 

note  by  Perkins.     Cf.   10  N.  J.  L.  287.  see  81  N.  Y.  573.     See  also,  as  to  the 

Though,  as  to  matters  growing  out  of  bill  for  an  accounting  from  one"s  prede- 

the  account,  such  as  adjusting  rights  be-  cessor,  Stallworth  v.  Farnham,  64  Ala. 

tween  the  representative  and  the  estate,  259,  345.    And  see,  as  to  administrators 

it  may  be  otherwise.     Adams  v.  Adams,  de  bonis  non,  supra,  §  408. 

supra.  '  Ewing     v.     Moses,    50     Ga.    264; 

In  the  United  States,  as  well  as  in  Marsh    v.    Richardson,    49    Ala.    431; 

England,  the  common-law  courts  have  Sanderson  v.   Sanderson,   17   Fla.  820. 

no   immediate    cognizance   of    the   ac-  As   to   settling   two   estates    under  the 

counts  of  executors  and  administrators,  same   administrator,   see    56  Ala.   486. 

and  cannot  compel  a  performance  of  the  As    to   appellate   powers,    or    those   of 

duty ;  this  being  a  branch  of  probate  or  review  in  chancery,  where  the  probate 

equity  jurisdiction.      Wms.   Exrs.   786,  tribunal  has  acted,  see  further,  §  530, 

post. 


§  521  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

substituted  service — proceeds  to  the  settlement  of  the  repre- 
sentative's accounts  and  a  final  distribution.^  Convenience 
may  sometimes  dictate  such  a  course ;  besides  which,  the 
assumption  of  authority  by  so  august  a  tribunal  may  not,  in 
practice,  be  readily  disputed.  A  court  of  chancery  will  rarely 
interfere,  however,  where  the  probate  tribunal  has  already 
taken  cognizance,  and  is  competent  to  adjust  the  account.'^ 
Provision  exists,  in  some  States,  for  removing  the  settlement 
of  an  estate  from  the  probate  to  the  chancery  court,  in  cer- 
tain cases.^ 

§  5-^-  Ecclesiastical  and  Probate  Jurisdiction  of  Accounts  in 
England.  —  To  come  to  our  main  subject,  namely,  ecclesias- 
tical and  probate  jurisdiction  over  the  accounting  of  execu- 
tors and  administrators.  We  have  seen,  that,  as  to  security 
from  executors,  neither  the  spiritual  nor  the  probate  court 
has,  in  England,  been  vested  with  competent  powers  ;  but, 
that  courts  of  chancery  rather  have  exercised  whatever  plen- 
ary authority  was  available  ;  *  also,  that  administrator's  bonds, 
under  the  latest  acts,  do  not  enforce  the  duty  of  a  probate 
accounting  very  strenuously.^ 

1  Daboll  V.  Field,  9  R.  I.  266;   Wms.  for  dealing  with  the  accounts  of  execu- 

Exrs.  2006,  and  note.     The  Mississippi  tors   and    administrators,   and   keeping 

code  aims,  in  regulating  such  suits,  to  the  records  of  settlement,  and  regulat- 

allow  in  a  single  suit,  complete  justice  ing  details  after  its  own  simple  system; 

to    be    done    to    all    parties,    including  while  chancery  refrains  from  disturbing 

creditors,     distributees,     and     sureties,  these  methods,  unless  a  special  compli- 

Buie  V.    Pollock,   55   Miss.    309.     And  cation  renders  its  intervention  desirable, 

see  Kent  v.  Cloyd,  30  Gratt.  555.  and,  on  the  whole,  discourages  costly 

The  original  and  inherent  jurisdiction  and  burdensome  proceedings  out  of 
of  equity,  in  a  State,  we  may  add,  over  course  by  creditors'  bill  or  otherwise,  to 
an  executor's  or  administrator's  accounts,  the  needless  shrinkage  of  the  assets; 
is  not  to  be  taken  away  by  mere  impli-  all  parties  aggrieved  having  ample  op- 
cation,  whenever  a  legislature  clothes  portunity  for  redress  by  taking  a  direct 
the  probate  tribunals  with  competent  appeal  from  the  probate  decree, 
powers ;  nor,  even  at  this  day,  is  a  local  ^  Seymour  v.  Seymour,  4  Johns, 
probate    authority    usually    found    ade-  409. 

quate    for    adjusting   all    the  questions  *  Marsh  v.  Richardson,  49  Ala.  431. 

which  may  arise  in  the  course  of  settling  That  the  probate  court  in  this  State  is 

estates,  still  less  for  exercising  exclusive  a  court  of  general  jurisdiction  for  the 

jurisdiction  in  such  matters.     And  yet  settlement  of  administration    accounts, 

the  American  tendency  is,  and  ought  to  see  65  Ala.  16. 

be,  to  favor  pre-eminently  the  probate  *  Supra,  §  137;    Wms.  Exrs.  237. 

tribunals  as  those  of  primary  functions,  *  Acts  21  Hen.  VIII.  c.  5;   22  &  23 

636 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS,  §  52 1 

One  may  readily  infer,  therefore,  that  jurisdiction  over  the 
accounting  of  executors  and  administrators,  as  exerted  by 
the  English  probate  or  ecclesiastical  tribunals,  is,  in  character, 
quite  secondary  to  that  of  chancery.  It  is  said,  that  neither 
an  executor  or  administrator  can  be  cited  by  a  probate  tri- 
bunal ex  officio  to  account  after  he  has  exhibited  an  inven- 
tory, but  it  must  be  at  the  instance  of  an  interested  party. 
But  those  interested,  and  those  with  even  the  appearance  of 
an  interest,  may,  we  have  seen,  require  an  inventory  to  be 
produced.  1  Whether  this  should  be  equally  true  of  proceed- 
ings for  account  or  not,  it  is  clear,  that,  at  the  instance  of  a 
legatee,  or  next  of  kin,  or  creditor,  the  representative  was 
compelled  to  account  before  the  ordinary,  while  the  probate 
tribunal  was  an  ecclesiastical  one.  But,  while  a  creditor 
might,  by  this  course,  gain  an  insight  into  the  condition  of 
the  assets,  in  aid  of  proceedings  in  the  common-law  court  to 
enforce  his  rights,  probate  tribunals  had  no  authority  to 
award  payment  of  his  debt ;  and  hence,  the  bill  in  equity, 
praying  for  a  discovery  of  assets  and  administration,  was 
more  commonly  brought.^  Legatees  and  distributees  were 
better  off  ;  for  legacies  and  distributive  shares  might  formerly 
be  sued  for  in  the  ecclesiastical  forum  ;  and,  indeed,  it  was  by  a 
sort  of  invasion  of  the  spiritual  jurisdiction  that  English  chan- 
cery courts  first  began  to  take  cognizance  of  such  rights  ;  but 
the  exclusiveness  of  chancery  authority  in  this  latter  respect, 
as  finally  conceded  by  the  English  parliament,  plainly  indicates 
how  inadequate  must  have  been  the  relief  which  an  ecclesias- 
tical forum  in  that  country  was  ever  competent  to  afford.-'^ 

Upon  petition  for  an  account  before  the  probate  or  ecclesi- 
astical forum,  the  creditors,  legatees,  and  all  others  having 
an  interest  must  be  cited  to  be  present ;  as,  otherwise,  an 
account  rendered  in  their  absence  will  not  bind  them.     At 

Car.  II.  c.    10;   20  &  21   Vict.  c.  77;  3  Decks  v.  Strutt,  5  T.  R.  692.     It 

Wms.  Exrs.  529-533;   supra,  §  139.  was  Lord  Nottingham  who  first  extended 

^  Wms.  Exrs.  2057;  I  Salk.  315,  316;  the  system  of  ecjuitable  relief  to  legatees. 

3  Atk.  253,  by  Lord  Hardwicke;  Wain-  Wms.  Exrs.  2061.     Under  act  20  &  21 

ford  V.  Barker,  i  Ld.  Raym.  232.  Vict.  c.  77,  §  23,  the  new  court  of  pro- 

^  Supra,  §    519;    Wms.    Exrs.    2058,  bate   can    entertain    no   suits    for    lega- 

2061 ;     Toller,  495;   Burn   Eccl.   Law,  cies  nor  for  the  distribution  of  the  resi- 

487.  due.     lb. 


§  521  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

the  hearing,  whether  all  such  parties  appear  or  not,  the  judge 
shall  proceed,  and  the  account,  as  determined,  shall  be  final.^ 
Inventory  and  account,  in  modern  English  practice,  are 
usually  returned  at  the  same  time ;  for  neither  inventory  nor 
account  is  produced  unless  called  for ;  and  if  interested 
parties  seek  the  one  they  probably  request  the  other.  But  if 
the  personal  representative  exhibits  personally  his  inventory 
and  account,  and  takes  his  oath  to  the  truth  thereof,  he  has 
performed  his  whole  duty  by  creditors  ;  for  they  are  not  per- 
mitted to  contest  items,  but  his  oath,  given  under  the  penal- 
ties of  perjury,  concludes  the  matter  here.^  If,  however,  a 
citation  to  account  in  the  ecclesiastical  forum  was  given  by  a 
legatee,  or  next  of  kin,  the  account,  as  rendered,  could  be 
objected  to  or  disproved;  and,  notwithstanding  his  general 
oath,  the  personal  representative  might  be  put  to  his  proof  of 
each  item.3  Wherever  it  appeared,  upon  due  investigation, 
that  the  account  rendered  was  true  and  perfect,  however,  the 
court  decreed  its  validity  ;  and,  as  to  all  interested  parties 
cited  in,  the  decree  became  final,  and  no  further  suit  could  be 
entertained.* 

It  might  happen  that,  while  one  creditor  resorted  thus  to 
the  probate  tribunal,  another  would  invoke  the  ampler  relief 
afforded  by  chancery.^  But  chancery  judges  would  not  per- 
mit creditors,  legatees,  or  next  of  kin  to  use  the  process  of 
the  spiritual  courts  in  aid  of  an  administration  suit ;  and  wher- 
ever one  who  had  brought  his  bill  in  chancery  prayed  for  an 
inventory  under  a  probate  citation,  he  was  compelled  to  make 
his  choice  which  tribunal  to  proceed  in.^ 

As  the  new  English  court  of  probate  is  invested  with  the 
same  authority  as  the  spiritual  courts  formerly  exercised  in 

1  4  Burn  Eccl.  Law,  487;  Wms.  tor  was  admitted  as  due  proof,  but  for 
Exrs.  2058.  payment  of  larger  sums  he  had  to  pro- 

2  2  Add.  330;  4  Burn  Eccl.  Law,  duce  vouchers.  4  Burn  Eccl.  Law,  488; 
488;   Wms.  Exrs.  2060.     As  to  whether  Wms.  Exrs.  2060. 

objections  could   be   entertained  to   an  *  Wms.    Exrs.    2060 ;    4   Burn    Eccl. 

inventory,  there  has  been  some  variance  Law,  487. 

in  the  decisions.     Wms.  Exrs.  982,  2060.  *  2  Cas.  Temp.  Lee,  561. 

3  The  rule  was  that  for  payments  «2  Cas.  Temp.  Lee,  31,  134,  268; 
made  bond  fide   in  sums  less  than  40^.  Wms.  Exrs.  2061. 

the  oath  of  the  executor  or  administra- 

638 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §  $22 

such  matters,  but  under  nominal  restrictions  even  greater 
as  to  affording  practical  relief  to  those  entitled  to  ask  for  an 
account,  the  supremacy  of  the  English  chancery,  in  litigation 
which  relates  to  the  discovery  and  administration  of  assets, 
appears  to  have  become  more  firmly  established  than  ever.^ 
That  returning  either  inventory  or  account  to  a  probate 
tribunal  has  become  a  matter  of  indifference,  appears  con- 
ceded by  the  very  form  of  the  bond  now  prescribed  by  the 
English  probate  court  ;^  it  is  a  virtual  assent  that  courts  of 
equity  shall  direct  and  supervise  the  practical  administration 
and  settlement  of  contentious  estates,  and  that  non-conten- 
tious business  may  be  privately  adjusted. 

§  5-2.  Probate  Jurisdiction  of  Accounts  in  the  United  States. 
—  In  this  country,  where  courts  of  probate  are  temporal 
tribunals,  and  a  harmonious  judicial  system  prevails  in  the 
several  States,  the  primary  and  usual  forum  of  accounting  is 
the  local  probate  court,  whence  the  executor  or  administrator 
received  his  credentials.  To  this  tribunal,  by  the  American 
system,  regular  accounts  should  be  returned  by  the  personal 
representative,  as  well  as  his  inventory.  The  bond,  which 
neither  testacy  nor  intestacy  exempts  one  from  furnishing, 
obliges  the  representative  to  return  an  account  to  the  probate 
court,  not  upon  request,  but  within  stated  and  regular  periods, 
until  the  administration  is  closed ;  and  to  this  condition  the 
sureties  of  the  representative,  if  there  be  such,  stand  likewise 
bound. ^  The  system  of  probate  accounting  is  simple,  exact, 
and,  except  in  contentious  business,  attended  with  little  cost. 
The  probate  accounts  of  each  deceased  person's  estate  become 
matter  of  public  record.  And,  while  the  parties  interested 
may,  perhaps,  be  suffered  to  close  up  an  estate  privately, 
provided  those  entitled  to  the  surplus  all  agree,  and  all  cred- 
itors' claims  and  legacies  are  settled,  together  with  charges, 

^  See  Stat.  20  &  21  Vict.  c.  77;   Wms.  ministration  "  whenever  required  by  law 

Exrs.  290,  292,  2062.  so  to  do."    lb.    We  have  seen  that,  even 

'^  Sec  supra,  §§  137-139;  Wms.  Exrs.  with  the  old  form  of  bond,  the  practice 

533.    The  condition  of  bond  (less  strict  of  returning  an  inventory  had  fallen  into 

than  that   formerly  stated)   is  that  the  disuse  in  that  country.     Supra,  §  229. 
principal  shall  make  and  exhibit  an  in-         ^  Supra,  §   140.      Such  is  the  usual 

ventory  and  render  an  account  of  ad-  tenor  of  legislation  in  American  States. 

639 


§522 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


the  failure  to  render  one's  probate  account  is,  nevertheless,  a 
breach  of  the  bond,  and  any  dissatisfied  party  in  interest  may 
avail  himself  of  it.^  Under  such  conditions  it  is  unlikely 
that  an  estate  will  be  settled  out  of  court  without  affording 
to  all  concerned  a  fair  opportunity  of  inspecting  the  adminis- 
tration accounts,  unless,  at  all  events,  their  respective  claims 
are  fully  and  promptly  settled. 

If,  in  fact,  an  executor  or  administrator  settles  privately 
with  the  parties  interested,  rendering  no  final  account  to  the 
probate  court,  such  a  settlement,  though  often  perhaps  con- 
veniently made,  will  not  absolve  him  from  compliance  with 
the  law ;  and  he  may  be  cited  into  court,  and  compelled  to 


1  McKim  V.  Harwood,  129  Mass.  75. 

A  private  arrangement  between  some 
of  the  distributees  does  not  discharge 
the  administrator  as  against  any  one 
who  was  not  a  party  to  the  agreement; 
nor  as  against  a  deceased  party  in  inter- 
est whose  own  representative  did  not 
enter  into  it.  Smilie  v.  Siler,  35  Ala. 
88.  And  distributees  may  generally,  at 
election,  hold  the  administrator  to  a 
strict  statutory  accounting.  Stewart  v. 
Stewart,  31  Ala.  207.  Even  if  the  as- 
sets were  all  used  in  preferred  charges, 
one  is  accountable.  Griffin  v.  Simpson, 
II  Ire.  126.  Liability  to  account  to 
legatee  not  discharged  by  legatee's 
written  receipt  of  a  nominal  sum  in  full 
of  all  demands.  Harris  v.  Ely,  25  N.  V. 
138.  If  the  representative  claims  that 
the  petitioner  for  an  account  has  re- 
leased him,  the  surrogate  may  pass  upon 
the  question  of  the  validity  of  such  re- 
lease. 41  Hun,  95;  4  Dem.  366.  That 
an'  account  filed  several  years  before  had 
not  been  acted  upon  does  not  excuse  the 
failure  to  render  periodical  accounts  as 
the  statute  requires.     44  Ark.  509. 

Next  of  kin  and  residuaries  may  pe- 
tition to  compel  an  account.  Hobbs  v. 
Craige,  i  Ired.  L.  332.  So  may  a  credi- 
tor or  legatee.  Harris  v.  Ely,  25  N.  Y. 
138;  Wever  v.  Marvin,  14  Barb.  376. 
But  see  Freeman  v.  Rhodes,  3  Sm.  & 
M.  329.  Concerning  devisees,  see  4 
Desau.  330.     And  as  to  a  cestui  que 


trust  or  infant,  whose  trustee  or  guar- 
dian is  one  of  the  executors,  see  i  Sandf. 
Ch.  399.  The  representative  is  bound 
to  account  upon  the  application  of  any 
one  interested  in  the  estate,  and  if  the 
applicant  has  no  intere.st,  that  is  a  suffi- 
cient defence  before  the  probate  tribu- 
nal. Becker  v.  Hager,  8  How.  (N.  Y.) 
Pr.  68.  But  relief  by 'injunction  is  not 
to  be  granted  on  this  ground.  lb.  See 
Okeson's  Appeal,  2  Grant  (Pa.)  303. 

Delay  in  settling  accounts  is  leniently 
regarded  by  some  American  courts 
where  no  fraud  or  misconduct  has  inter- 
vened. Jones  V.  Williams,  2  Call,  102. 
But  correct  accounts  should  have  been 
kept  and  exhibited  to  any  interested 
party  desiring  to  see  them.  Rhett  v. 
Mason,  18  Gratt.  541.  As  to  the  duty 
of  probate  accounting,  notwithstanding 
a  pending  chancery  suit,  see  Jones  v. 
Jones,  41  Md.  354.  Breach  of  the  bond, 
how  cured  before  suit  brought  on  it. 
McKim  V.  Harwood,  129  Mass.  75. 

A  sheriff  or  ex  officio  administrator 
may  be  cited  in  to  account.  McLaugh- 
lin V.  Nelms,  9  Ala.  925.  As  to  account- 
ing by  the  representative  of  a  deceased 
representative,  see  Schenck  v.  Schenck, 
3  N.  J.  L.  (2  Pen.)  562;   supra,  §  408. 

See,  in  general,  Sellers  v.  Sellers,  35 
Ala.  235;  Hillman  v.  Stephens,  16 
N.  Y.  278;  Whiteside  v.  Whiteside,  20 
Penn.  St.  473. 


640 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  522 

render  account  there,  even  though  he  produces  the  receipts 
of  all  the  surplus  distributees,  acknowledging  the  payment  of 
their  respective  shares  in  full.^  A  settlement  out  of  court  is 
not  presumed  to  intend  dispensing  with  accounting  ;  and,  even 
if  it  did,  not  to  account  is  a  breach  of  the  conditions  annexed 
to  the  appointment.  Not  only  are  representatives  liable  to 
suit  on  their  official  bond  if,  on  being  cited  in,  they  neglect 
to  render  accounts  of  administration,  but,  under  some  Ameri- 
can codes,  they  may  be  indicted  for  delinquency  in  this  re- 
spect,2  or  compelled  to  pay  a  fine  ;^  and  one  may  be  removed 
from  his  trust  for  failing  to  account  correctly  on  citation.* 
Any  one  showing  2i primd  facie  right  may  require  the  account.* 
In  various  States,  moreover,  the  probate  court  may,  of  its 
own  motion,  and  without  application  of  an  interested  party, 
make  an  order  citing  in  the  delinquent  representative.^  And 
thus  American  probate  practice  is  seen  to  be  quite  different 
from  that  which  prevails  in  England. 

But  an  executor  or  administrator  is  not  bound  to  render 
either  account  or  inventory,  it  is  held,  where  no  property  has 
come  to  his  hands.'  And  where  special  circumstances  such 
as  lapse  of  time,  civil  commotion,  or  the  assent  of  interested 
parties,  have  rendered  an  exact  accounting  impracticable  while 
imputing  no  blame  to  the  representative,  the  court  will  be 
lenient  as  to  particulars.^ 

^  Bard  v.  Wood,  3  Met.  74;  Clark  v.  that  he  has  received  no  assets,  he  is  ex- 
Clay,  II  Fost.  393.  cused;  or,  if  good  cause  he  furnished 
2  See  State  z/.  PaiTish,4  Humph.  285;  for  further  delay,  the  court  is  usually 
Davis  V.  Harper,  54  Ga.  180;  14  La.  empowered  to  grant  it.  Citation  to  the 
Ann.  779.  He  may  be  imprisoned  for  representative  is  a  matter  of  right, 
contumacy.     14  La.  Ann.  779.  Smith  v.  Black,  9  Penn.  St.  308. 

8  Collins  f.  Hollier,  13  La.  Ann.  585.  Neglect    of    the    representative    to 

*  See,  as  to  removal,  supra,  §  154.  make  answer  to  a  demand  to  pay  sums 

^  14  Phila.  310,  322,  325.  due  by  way  of  distribution  may  be  con- 

6  Witman's     Appeal,     28    Penn.    St.  sidered  a  refusal  to  account.     Cutter  v. 

376;   Campbell,  Re,  12  Wis.  369.     But  Currier,  54  Me.  81. 

one   is   not    considered  as    refusing  or  Where    the    representative    has  ap- 

neglecting  to  account,  within  the  usual  peared  in    answer  to  a   citation,  he  is 

meaning  of  American   statutes,  until  he  affected   with   knowledge  of   all    subse- 

has  been  cited  by  the  ptobate  court  for  quent  proceedings.    Duffy  v.  Buchanan, 

that    purpose.       Nelson     v.    Jaques,    i  8  Ala.  27. 

Greenl.  139;    McKim  v.  Harvvood,   129  ^  Walker  v.  Hall,  i  Pick.  20. 

Mass.  75;   Barcalow,  Matter  of,  29  N.  J.  *  Clark    v.    Eubank,    So    Ala.     584. 

Eq.  282.     And,  upon  showing  the  court  Where  the  representative,  without  good 

641 


§   523  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

§  523-  Citation  of  Parties  interested  in  the  Account,  in  Ameri- 
can Probate  Practice ;  their  Assent  to  its  Allo\vance.  —  In 
American  probate  practice,  the  executor  or  administrator 
presents  his  account  to  the  register,  who  issues  a  citation 
directing  next  of  kin,  creditors,  legatees,  and  all  other  persons 
interested  in  the  estate,  to  appear  before  the  probate  court  at 
a  day  stated,  and  show  cause,  if  any  they  have,  against  its 
allowance.  Citation  is  usually  by  newspaper  publication,  and 
the  representative  must  obey  the  mandate  as  issued  to  him. 
But,  following  the  distinctions  to  be  noticed  between  partial 
accounts  and  the  final  account,  those  of  the  former  kind  are 
not  unfrequently  passed  upon  by  the  judge  without  formal 
citation,  the  rights  of  interested  parties  being  more  sedulously 
protected  at  the  final  rendering  ;  nor  is  a  probate  court  always 
left  without  some  statute  discretion  as  to  requiring  a  citation 
at  all.  Citation  may  be  dispensed  with  when  all  persons  in- 
terested (or,  more  particularly,  those  entitled  to  the  surplus) 
express,  in  writing,  their  request  that  the  account  be  allowed 
without  further  notice  ;  thereby  assenting  virtually  to  its  al- 
lowance. But  the  assent  of  one  or  more  persons  in  interest 
does  not  conclude  the  others,  nor  impair  their  own  right  to 
be  cited  in  before  the  account  is  allowed.^ 

In  some  States,  where  one  of  the  persons  interested  in  a 

excuse,  states  his  account  unintelligil)ly  the  judge,  accompaniad  with  vouchers; 
be  may  be  ordered  to  restate  it  at  his  it  must  then  be  examined  and  stated  for 
own  expense.  13  Phila.  284.  He  may  allowance;  after  which  notice  is  given 
be  required  to  file  a  suitable  account  in  of  the  term  at  which  it  will  be  reported 
place  of  a  defective  one  which  is  unfit  for  allowance,  that  all  who  are  inter- 
to  be  passed  upon.  Hirschfield  v.  Cross,  ested  may  examine  the  account  as  stated, 
67  Cal.  661.  and  be  prepared  to  contest  it.  See 
1  A  probate  citation  is  usually  pub-  Robinson  v.  Steele,  5  Ala.  473;  Steele 
lished  once  a  week  for  three  successive  v.  Morrison,  4  Dana,  617;  5  Hayw. 
weeks;  the  statute  requirement  should  261;  5  Dem.  21,216.  We  have  seen 
be  carefully  followed.  See  16  Ala.  693.  that  claims  upon  an  estate  are  in  some 
Where  notice  is  given  of  an  annual  or  States  regularly  filed  for  allowance  in 
partial  settlement,  a  final  decree  is  im-  court.  Supra,  §  420.  It  is  customary, 
proper.  21  Ala.  363.  See  Scott  1.  however,  in  New  England  States,  and 
Kennedy,  12  B.  Mon.  510;  20  Miss,  in  many  others,  for  the  executor  or  ad- 
649;  Probate  Manuals  of  Smith,  Red-  ministrator  to  pay  and  keep  his  own 
field,  and  Gary,  passim  ;  also  the  pro-  vouchers  for  payments,  presenting  such 
visions  of  local  codes.  In  some  States  vouchers  for  the  court's  inspection 
greater  formality  appears  to  be  pursued,  upon  any  controversy. 
The  account  must  be  first  presented  to 

642 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  524 

final  accounting  is  an  infant,  or  not  siii Juris,  a  special  guar- 
dian must  be  appointed  to  represent  him.^  Ikit,  in  others,  a 
published  citation  appears  to  dispense  practically  with  other 
formalities.  The  fact,  that  a  probate  decree  may  be  voidable 
as  to  an  infant,  does  not,  of  course,  entitle  any  one  else 
who  is  interested  to  invoke  such  disability  on  his  own 
behalf.2 

§  524.  The  Form  of  Administration  Account.  —  In  his  pro- 
bate account,  it  is  usual  for  the  executor  or  administrator,  by 
way  of  general  statement,  to  charge  himself  with  the  amount 
of  assets  which  have  come  to  his  hands,  and  ask  to  be  allowed 
for  the  amount  of  all  debts  and  claims  paid  by  him,  together 
with  the  expenses  of  administration  ;  the  balance  shown,  if 
any,  going  over  to  the  next  account,  or  remaining  finally  for 
distribution.  A  convenient  form,  adopted  in  various  States, 
makes  the  general  statement  on  the  face  of  the  account 
refer  for  details  to  schedule  A.  and  schedule  B.  ;  schedule  A. 
sets  forth  the  items  with  which  the  representative  charges 
himself,  making  the  inventory  valuation  of  personal  property 
the  first  item  in  a  first  account,  and  the  balance  from  the  next 
preceding  account  the  first  item  in  each  succeeding  account ; 
schedule  B.  details  the  payments,  the  losses  upon  the  inven- 
tory valuation,  and  charges.  The  usual  rules  of  single-entry 
bookkeeping  are  followed,  as  to  entering  dates,  parties,  sums 
received  or  paid,  and  the  like.  In  many  States,  blanks  are 
supplied  at  the  probate  registry  for  the  purposes  of  probate 
accounts.^ 

The  proper  number  of  each  administration  account  is  stated 
on  its  face  ;  a  final  account,  moreover,  should  plainly  purport 
to  be  such  ;^  but  perhaps  an  account,  appearing  on  its  face  to 

1  Gunning  v.  Lockman,  3  Redf.  273.  who    fail    to    appear.      4    Paige,    102. 

■■2  Hutton  V.  Williams,  60  Ala.  107.  Notice  is  not  a  pre-requisite  to  probate 
In  some  States  accessible  parties,  such  jurisdiction,  and  the  want  of  notice  may 
as  a  distributee  residing  within  the  be  cured  by  the  voluntary  appearance 
county,  are  entitled  to  personal  service  of  the  parties  interested.  35  Ala.  295. 
of  the  notice  of  final  settlement.  34  Creditors  of  distributees  are  not  par- 
Miss.  322.  ties  in  interest  who  may  object  to  the 

Neglect  of  legatees,  etc.,  to  attend  at  representative's  account.     40  Ala.  289. 

the  final  settlement,  enables  the  repre-  *  See  Smith  Probate  Guide,  165. 

sentative  to  proceed  tfjr /ar/^  as  to  those  *  Bennett  v.  Hannifin,  87  111.  31. 

643 


§  525  EXECUTORS    AND    ADMINISTRATORS.  [PART  VH. 

be  a  final  one,  will  be  deemed  such,  although  not  so  styled  in 
the  caption.^ 

§  525-  Authentication  and  Proof  of  Account  in  American 
Probate  Practice.  —  A  probate  account  is  usually  submitted 
on  oath  by  the  executor  or  administrator.  This  oath,  to  the 
effect  that  the  account  is  just  and  true,  is  administered  in 
open  court  by  the  judge  of  probate,  according  to  the  more 
exact  practice ;  current  legislation,  however,  tends  to  facilitate 
such  business,  where  the  judge's  duties  are  onerous,  by  per- 
mitting the  oath  not  only  to  be  taken  out  of  court,  but  to  be 
administered  by  any  justice  of  the  peace.^  Whether  the 
oath  to  the  account  is  administered  by  the  judge  or  not,  his 
decree  of  approval  is  generally  essential,  before  its  formal 
allowance. 

Much  of  this  accounting  is  non-contentious  and  formal ; 
and  with  the  rendering  of  his  account,  thus  sworn  to,  together 
with  an  affidavit  that  the  citation  to  interested  parties  has 
been  duly  served,  if  citation  was  ordered,  or,  instead,  their 
written  assent,  the  duty  of  the  executor  or  administrator  is 
fulfilled.  But  the  judge  of  probate  may  at  discretion  scru- 
tinize the  account,  ask  proof  as  to  particular  items,  and  ascer- 
tain judicially  that  the  account  is  correct  before  allowing  it.^ 
And  if  parties  interested  appear  and  object  to  its  allowance 
as  presented,*  a  fair  hearing  should  be  given  them.  The 
court  may  allow,  disallow,  or  order  the  accountant  to  charge 
himself  with  sums  received  which  should  have  been  entered, 
and  practically  require  a  restatement  of  the  account,  with 
proper  corrections,  as  justice  may  require  ;  though  as  to  com- 
pelling such  restatement,  independently  of  a  clear  statute 
authority,  the  power  of  a  probate  judge  may  be  questioned.^ 

'  Stevenson  v.  Phillips,  21  N.  J.  L.  70.  sworn  statement  that  he  has  an  interest. 

2  See  Gardner  v.  Gardner,  7  Paige,  Garwood  z'.  Garwood,  29  Cal.  514;  Hal- 
112.  leek's  Estate,  49  Cal.  in.     The    inter- 

3  Especially  if  the  rights  of  infants  or  est  should  be  alleged  of  record.  2 
absentees  are  concerned.  Gardner  v.  Harring.  273.  And  see  38  La.  Ann. 
Gardner,  7  Paige,  112.  830. 

*  The  probate  court  may  proceed  to  ^  The  hearing  before  a  judge  of  pro- 
determine  whether  a  party  who  objects  bate  takes  usually  the  course  indicated 
to  an  account  has  any  interest  in  the  in  the  text;  the  procedure  being  flexi- 
estate,     notwithstanding    such    party's  ble,  and  the  practical  object  to  secure  a 

644 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §  525 

The  executor  or  administrator,  as  various  local  codes  declare, 
may  be  examined  on  oath  before  the  court,  upon  any  specific 
matter  relating  to  his  accounts  ;i  and  the  party  at  whose  in- 
stance interrogatories  have  been  proposed  to  him  has  a  right 
to  offer  evidence  to  disprove  his  answers.^  As  in  the  old 
ecclesiastical  practice,  the  executor  or  administrator  is  a  com- 
petent witness  to  small  charges;^  but  larger  items  objected 
to  he  ought  to  support  by  vouchers  or  other  extraneous  proof.* 
One  money  standard,  and  that  the  prevalent  and  legal  one, 
ought  to  regulate  the  whole  accounting.^ 

Hearings  before  a  judge  of  probate  upon  an  administration 
account  are  generally  quite  informal ;  and  issues  are  raised, 
and  questions  put  and  answered,  regardless  of  technical  rules, 
the  judge  seeking  to  elicit  truth  upon  a  summary  hearing, 
that  he  may  decide  correctly  and  quickly.  Oral  testimony 
is  generally  admitted,  and  explanations  are  made  by  the 
representative,  often  without  being  sworn  at  all.  Where, 
however,  disputants  insist  upon  it,  the  rules  of  judicial  inves- 
tigation are  more  strictly  observed  ;  the  representative  is  put 
upon  oath  as  to  items  ;  ^  and,  if  chancery  precedents  be  favored, 
those  surcharging  an  account  should  specify  the  particular 
items  objectionable,  and  issues  be  framed  accordingly."     But 


correct  account  and  settlement;   and  the  Wade  v.  Lobdell,  4  Cush.  510;   Smith 

representative   himself,   as  well  as  the  Prob.  Pract.  183. 

parties  in  interest,  usually  acquiescing  ^  Bailey  v.  Blanchard,   12  Pick.  166. 

in  the  decision  of  the  judge.     But  it  is  Charges  "  not  exceeding  forty  shillings  " 

held  that  an  executor  or  administrator  (or,  perhaps,  five  dollars)  may  be  thus 

cannot    be    compelled   to    conform   his  proved. 

return  under  oath  to  the  views  of  the  *  Hall  v.  Hall,  i  Mass.  loi ;   19  Tex. 

court;   that  it  is  for  the  representative  317;    12  La.  Ann.  537;    2  Dev.  &  B. 

to  make  returns,  and  for  the  court  to  Eq.  325.     63  Cal.  349. 

judge   of   their    effect.     40    Miss.    704.  ^  See  2  Call,   190;    Magraw  v.  Mc- 

But  the  court   may  have  a  correction  Glynn,  26  Cal.  420.  Upon  an  accounting, 

made  by  reference  or  otherwise  where  payments  made  cannot  be  rejected,  be- 

the  representative  does  not  correct  the  cause  neither  the  accounts  nor  the  oath 

account.     41  Miss.  411.  show  to  whom  the  payments  were  made; 

1  Stearns    v.    Brown,    i    Pick.    530;  but  the  testimony  of  the  representative 

Hammond  v.  Hammond,  2  Bland,  306;  is  admissible  on  this  point.     Nichols, 

44  Mich.  57.     And  see  Ogilvie  v.  Ogil-  /?e,  4  Redf.  288. 

vie,    I    Bradf.   356.     The   duly  verified  «  Rathbone's    Estate,  44    Mich.    57; 

administration  account  is  primA  facie  Stearns  v.  Brown,  i  Pick.  530. 

correct.     4  Redf.  (N.  Y.)  265.  "See  Tanner  v.   Skinner,    11    Bush, 

*  Higbee    v.    Bacon,   8   Pick.    484:  120.    But  this  rule  is  flexible  as  applied. 

645 


§  525 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


an  examination  is  not  usually  confined  to  written  interroga- 
tories and  answers,  though  it  may  be  thus  conducted  ;  and 
even  should  the  account  be  regularly  audited,  strict  proof  of 
items  may  be  dispensed  with  where,  from  the  nature  of  the 
case,  vouchers  cannot  be  produced.^  In  settling  an  adminis- 
tration account,  a  probate  or  equity  court  is  not  usually  bound 
by  technical  rules  of  evidence.^ 


Gardner    v.    Gardner,    7    Paige,    112; 
Buchan  v.  Rintoul,  70  N.  Y.  i. 

1  Lidderdale  v.  Robinson,  2  Brock. 
159.  Vouchers  alone  may  not  be  strictly 
evidence  of  payments  without  authenti- 
cation, but  they  are  accepted  usually  if 
not  objected  to.     2  Dev.  Eq.  137. 

2  Sterrett's  Appeal,  2  Pa.  419;  Ro- 
mig's  Appeal,  84  Penn.  St.  235.  In 
some  States  an  account  in  contentious 
business  is  to  be  made  before  an  auditor 
under  the  probate  court's  direction,  and 
he  will  report.  Hengst's  Appeal,  23 
Penn.  St.  413;  Pollock,  Jie,  3  Redf. 
icx);  Rich,  Re,  3  Redf.  177;  Tucker  v. 
Tucker,  28  N.  J.  Eq.  223.  An  admin- 
istration account,  audited  by  commis- 
sioners, returned  to  court  and  recorded, 
is  not  a  conclusive  settlement  of  the 
estate;  either  distributees  or  the  repre- 
sentative himself  may  oppose  its  accept- 
ance. 90  N.  C.  537.  The  representative 
claiming  credit  on  settlement  for  the 
payment  of  a  debt  has  the  burden  of 
proof.  73  Ala.  238.  Where  a  note 
given  by  decedent  is  produced  by  one 
objecting  to  the  account,  the  represen- 
tative may  show  that  the  note  has  been 
paid.  106  Penn.  St.  498.  Objections 
to  the  account  should  be  specific.  74 
Ala.  332;    87  Ind.  294. 

When  the  disputed  account  of  an 
executor  or  administrator  is  referred  to 
an  auditor  for  examination,  he  should 
pass  upon  the  objections  filed  to  the 
accounts  and  no  others;  the  surrogate  or 
probate  judge  may  allow  further  objec- 
tions to  be  filed;  but,  if  the  rulings  of 
an  auditor  are  appealable  at  all  from 
the  surrogate  or  judge,  the  questions 
must  at  all  events  have  been  first  referred 
to  the  surrogate  or  judge  for  his  decis- 
ion.    Boughton  V.  Flint,  74  N.  Y.  476. 


The  probate  court  need  not  refer  mat- 
ters to  an  auditor  where  the  facts  can 
be  conveniently  ascertained  and  deter- 
mined without  doing  so.  Maxwell  v. 
McChntock,  10  Penn.  St.  237.  And 
see,  as  to  auditor,  15  Penn.  St.  403; 
23  Penn.  St.  180. 

On  an  accounting,  the  executor  or 
administrator  may  be  required  to  dis- 
close the  assets  of  a  partnership  of 
which  he  and  the  decedent  were  mem- 
bers when  the  latter  died,  although  the 
interest  of  the  decedent  in  the  firm 
is  entirely  unliquidated.  Woodruff  v. 
Woodruff,  17  Abb.  (N.  Y.)  Pr.  165. 

Upon  the  final  accounting,  the  pro- 
bate judge  or  surrogate  has  generally  a 
jurisdiction  to  hear  and  determine  a 
disputed  claim  of  the  executor  or  ad- 
ministrator himself  against  the  estate; 
and  even  though  the  claim  were  such 
that  equitable  relief  for  enforcing  it 
could  only  be  had  in  chancery,  the  right 
to  retain  out  of  the  assets  of  the  estate 
a  sum  of  money  as  belonging  or  due 
to  him,  brings  the  matter  fairly  within 
the  province  of  the  tribunal  which 
passes  upon  the  account.  Boughton  v. 
Flint,  74  N.  Y.  476;  Kyle  v.  Kyle,  67 
N.  Y.  400.  See,  as  to  retainer,  supra, 
§  439.  See  Watson  v.  Watson,  58  Md. 
442;  62  Gal.  186.  Where  the  repre- 
sentative has  by  retainer  satisfied  his 
own  claim  against  the  estate,  the  pro- 
bate court  in  passing  his  account,  has 
jurisdiction  to  inquire  into  the  validity 
of  the  claim,  and  the  legality  of  his  ac- 
tion in  retaining  therefor.  Kinnan  v. 
Wight,  39  N.J.  Eq.  501.  The  excess 
of  commissions  allowed  on  an  interme- 
diate account  cannot  be  examined  by 
exceptions  to  a  sul)sequent  account,  bnt 
if  excessive  commissions  were  allowecl 


646 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §  526 

§  526.  Periodical  Returns;  Partial  Accounts  and  the  Final 
Account.  —  Periodical  return  is  part  of  the  American  probate 
system ;  a  first  account  being  ordered  within  a  stated  time, 
usually  one  year  from  the  date  of  appointment ;  and  other 
accounts  from  time  to  time,  or,  perhaps,  annually,  until  the 
estate  is  fully  settled.  Hence,  as  estates  may  not  always  be 
legally  wound  up  within  one  year,  a  practical  distinction  be- 
tween partial  accounts  and  the  final  account  which  closes 
the  administration.^ 

The  rule  is,  that  partial  accounts  of  administration  are, 
especially  if  rendered  without  cita.tion,  />rimd  facte  correct,  but 
nothing  more,  and  bind  no  one  in  interest ;  and,  on  a  final 
settlement,  they  may  be  so  far  opened  up,  without  any  special 
application,  as  to  correct  errors  therein,  whether  originating 
in  fraud  or  misapprehension,  and  although  the  error  was  not 
excepted  to  when  the  partial  account  was  rendered,  nor  then 
appealed  from.^  Former  accounts,  too,  may  be  opened  up 
for  correction  of  fraud  or  mistake,  upon  the  filing  of  subse- 
quent partial  accounts,  as  various  local  acts  plainly  sanction.* 
A  final  account  has  the  force  of  a  final  judgment,  and  is  taken 
to  be  conclusive,  unless  appealed  from  or  impeached  for  fraud  ; 
while  a  partial  account  is  only  a  judgment  de  bene  esse ;  for 

that  fact  may  be  considered  in  fixing  Penn.  St.  376;  Shaffer's  Appeal,  46 
their  commissions  for  subsequent  ser-  Penn.  St.  131.  A  representative's  duty 
vices.  36  N.  J.  Eq.  515.  And  see  to  file  annual  or  partial  returns  is  a 
next  c.  statute  requirement,  and  conditions  not 
1  As  to  requiring  annual  returns,  see  expressed  in  the  statute  cannot  be  inter- 
Wellborn  V.  Rogers,  24  Ga.  558.  The  polated.  Koon  v.  Munro,  11  S.  C.  139. 
periods  for  settling  accounts  are  pre-  Statutes  set  special  periods  for  account- 
scribed  in  each  State  by  statute,  and  ing  where  the  estate  is  insolvent.  Mass. 
accounts   are    usually    to    be    rendered  Pub.  Stats,  c.  137. 

within  a  year  from  the  time  of  appoint-         ^  Coburn    %>.    Loomis,    49    Me.   406; 

ment,  and  afterwards  as  often  as  once  a  Clark  v.  Cress,  20  Iowa,  50;   Goodwin 

year  while  the   trust  continues;   but  ac-  z/.  Goodwin,  48  Ind.  584;   58  Iowa,  36; 

counts  later  than  the  first  are  sometimes  75   Mo.  204;   Picot  v.  Biddle,  35  Mo. 

left  discretionary  with   the  court.     See  29;     Cavendish    v.    Fleming,    3    Munf. 

Mass.  Pub.   Stats,    c.    144;    Musick   v.  198;   Grant  z'.  Hughes,  94  N.  C.  231. 
Beebe,  17  Kan.  47.    Where  assets  come         ^  .Stayner,  Re,  33  Ohio  St.  481 ;   Shep- 

to  the  hands  of  the  executor  or  adminis-  ley,  J.,  in  Sturtevant  v.  Talln..in,  27  Me. 

ttator  after  a  partial  account,  he  is  bound  85;    Stearns  v.   Stearns,   i    Pick.   157; 

to  render  a  supplementary  account,  in-  Sumrall  v.  .Sumrall,  24  Miss.  258;  Ste- 

cluding  such  assets,  within  a  reasonable  phenson  v.   Stephenson,  3   Hayw.  123; 

time  afterwards.     Witman's  Appeal,  28  Mix's  Appeal,  35  Conn.  1 21. 

647 


§   526  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

according  to  such  practice,  the  latter  is  often  rendered  ex 
parte,  and  without  notice  to  persons  interested,  and  may  be 
considered  as  given  chiefly  for  the  information  of  the  court, 
and  the  convenience  of  the  personal  representative  in  the 
management  of  the  estate. ^ 

But,  on  the  final  account,  the  general  fairness  of  the  ad- 
ministration comes  up  properly  for  a  final  review.  Such  an 
account,  in  order  to  operate  as  conclusive  upon  all  concerned, 
can  only  be  rendered  upon  due  publication  of  notice  to  cred- 
itors and  all  persons  interested,  unless  their  assent  is  ex- 
pressed ;  the  time  for  rendering  it  is  when  the  estate  has 
been  fully  administered,  unless  one's  office  for  some  reason 
sooner  expires  ;  it  is  properly  for  the  protection  of  the  repre- 
sentative, and  as  a  final  adjudication  of  all  controversies.  On 
this  final  account,  errors  and  mistakes  in  all  former  accounts 
may  and  should  be  corrected,  once  and  for  all,  and  improper 
items  stricken  out  ;  and  disputes  of  charge,  compensation, 
and  allowance  finally  determined ;  nor  is  the  allowance  of 
previous  partial  accounts  without  notice  to  legatees  or  next 
of  kin,  conclusive  on  them,  but  they  may  object  on  the  final 
account,  and  the  court  is  bound  to  consider  evidence  from 
them   disproving  or  reducing  former  items.^     This  final  ac- 

1  Musick  V.  Beebe,  1 7  Kan.  47 ;  State  parties  in  interest  to  an  issue  before  the 

V.  Wilson,  51  Ind.  96;  Sheetz  v.  Kirtley,  interests  of  the  estate  have  suffered  too 

62  Mo.  417;    Liddell  v.   McVickar,  6  far;   while  executors  and  administiators 

Hals.  44;    Snodgrass  v.  Snodgrass,  57  are  thus  kept  to  a  diligent  and  faithful 

Tenn.  Y^i.  discharge  of  their  duties,  and  the  judge 

Annual    and    partial     accounts     are  of  probate  may  the  better  pacify  or  pro- 

pecuharly  valuable  as  serving  to  show  tect    legatees   and    kindred  when   they 

the    representative's    liability,    and    for  and  the  representatives  of  the  estate  fail 

keeping  the  court  and  interested  parties  to  harmonize. 

informed  of  the  general  condition  of  the  2  mjx's  Appeal,  35  Conn.  121 ;  Bra- 
estate  while  in  process  of  settlement,  zeale  v.  Brazeale,  9  Ala.  491 ;  Collins  v. 
and  ascertaining  whether  the  represen-  Tilton,  58  Ind.  374.  The  fact  that  al- 
tative's  bond  should  be  increased.  They  lowance  had  been  made  by  a  former 
zl^oxd  primd  facie  evidence  of  the  facts  judge  of  the  court  by  a  mere  approval, 
they  .state ;  and  it  is  proper  enough  for  without  a  hearing  or  citation,  does  not 
interested  parties  to  object,  when  the  affect  the  right  to  re-open  before  the 
partial  account  is  rendered,  to  the  allow-  subsequent  judge.  Collins  v.  Tilton,  ib. 
ance  of  any  item  therein  stated.  Practi-  And  see  Bantz  v.  Bantz,  52  Md.  686. 
cally,  indeed,  the  rendering  of  periodical  It  is  no  ground  for  not  correcting  an 
accounts  is  often  found  to  bring  dissen-  error  that  the  item  had  been  allowed 
sions  between  the   representative   and  upon  appeal  from  the  former  and  partial 

648 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §  526 


count,  once  examined  and  approved  by  the  probate  court, 
after  due  citation,  and  not  reversed  on  appeal,  operates  as  a 
final  judgment ;  it  concludes  in  general  all  the  parties  inter- 
ested, and  cannot  be  reopened  or  annulled  in  any  court, 
except  it  be  by  direct  proceedings  in  probate,  or  perhaps  in 
chancery,  for  frautl  or  manifest  error.^ 

The  broad  distinction  between  partial  and  final  accounts, 
is  not,  however,  universally  approved  in  American  probate 
practice  of  late  years.     Thus,  in  Pennsylvania,  where  it  was 


settlement  by  a  person  interested  in 
other  items,  but  not  in  this.  Clement's 
Appeal,  49  Conn.  519. 

1  Austin  V.  Lamar,  23  Miss.  189; 
Brick's  Estate,  15  Abb.  (N.  Y.)  Pr.  12. 
As  to  appeal,  etc.,  sec  §  530, /oj/.  See, 
as  to  the  analogous  case  of  guardianship 
accounts,  Schoul.  Uom.  Rel.  3d  ed.  § 
372,  and  cases  cited.  And  see  Mayo  v. 
Clancy,  57  Miss.  674;  Seawell  v.  Buck- 
ley, 54  .\la.  592;  Musick  v.  Beebe,  17 
Kan.  47.  A  final  account  allowed  is 
voidable  at  the  election  of  one  not  duly 
cited  as  entitled  nor  brought  into  the 
account.  54  Miss.  700.  In  New  York 
practice,  a  surrogate  may  make  an  order 
opening  a  final  accounting  of  executors 
or  administrators  for  re-examination,  at 
least  to  the  extent  of  correcting  specified 
errors  apparent  on  the  face  of  the  ac- 
count; but  the  power  should  be  exer- 
cised only  in  rare  instances  and  with 
great  caution.  Decker  v.  Elwood,  i 
Thomp.  &  C.  (N.  Y.)  48;  Strong  v. 
Strong,  3  Redf.  477.  Only  a  court  of 
equity,  and  not  a  probate  court,  can 
open  a  settled  account  in  some  States. 
Harris  v.  Stilwell,  4  S.  C.  19.  Though 
such  is  not  the  rule.  A  final  accounting 
does  not  bar  proceedings  for  a  distinct 
trust.  5  Hun,  16;  4  Redf.  180.  The 
final  settlement  does  not  preclude 
further  inquiry  in  regard  to  the  assets  of 
the  estate  in  the  hands  of  the  represen- 
tative not  accounted  for  or  passed  upon. 
Mc.\fee  V.  Phillips,  25  Ohio  St.  374. 
Cf.  16  Ohio  St.  274.  But  it  concludes 
as  against  the  representative,  that  what 
was  charged  in  the  accounting  as  assets 
was  such.     McDonald  v.  McDonald,  50 


Ala.  26.  And  a  final  account  regularly 
allowed  is  presumed  to  embrace  every- 
thing which  was  the  proper  subject  of 
inquiry.  Brown  v.  Brown,  53  Barb.  217. 
See  Davis  v.  Cowdeii,  20  Pick.  510; 
Sever  v.  Russell,  4  Cush.  518. 

As  to  opening  and  reviewing  probate 
settlements  in  a  court  of  chancery  to 
correct  mistakes  and  afford  relief,  see,  in 
detail,  U.  S.  Digest,  First  Scries,  Exec- 
utors and  Administrators,  4146-4250. 
There  are  various  recent  State  enact- 
ments which  relate  to  this  subject,  their 
tendency  being,  however,  to  conclude 
all  such  controversies  in  the  probate 
court  and  upon  appeal  in  regular  course. 
See,  on  this  point,  30  Ark.  66;  34  Ark. 
117;  50  Ala.  319;  64lnd.  79.  But  cf.  14 
Fed.  R.  93.  One  who  retains  the  bene- 
fits is  not  competent  to  allege  a  fraud  in 
the  accounts.  81  111.  571.  Nor  will 
equity  set  aside  a  settlement  because  of 
illegal  allowances  to  the  representative 
where  there  is  no  proof  that  they  were 
obtained  by  fraud  or  misrepresentation. 
34  Ark.  63;  54  Mo.  200;  67  Mo.  247. 
See  as  to  application  l^v  an  infant  one 
year  from  the  time  of  attaining  majority; 
also,  N.  Y.  Code,  conferring  power  to  re- 
open in  cases  of  fraud,  newly  discovered 
evidence,  clerical  error,  or  other  suf- 
ficient cause.  Tildcn,  Re,  198  N.  Y. 
434.  And  see  Riley  v.  Norman,  39  Ark. 
158.  But  a  final  settlement  is  generally 
conclusive,  apart  from  fraud,  etc.,  where 
infant  distributees  in  interest  are  repre- 
sented by  a  guardian  ad  litem.  Trawick 
V.  Trawick,  67  Ala.  271.  Consult  local 
codes  on  this  point. 


649 


§5^6 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


formerly  usual  to  admit  exceptions,  when  a  final  account  was 
filed,  to  that  or  to  any  previous  probate  account,  all  partial 
accounts  are,  under  later  legislation,  rendered,  when  con- 
firmed absolutely  and  upon  due  consideration,  and  without 
an  appeal,  final  and  conclusive,  in  regard  to  all  that  they  con- 
tain,^ though  not  as  to  what  may  have  been  reserved  for  a 
future  account.^  In  Massachusetts,  too,  and  some  other  States, 
the  policy  is  manifestly  to  discourage,  at  all  events,  the  re- 
opening of  disputes  which  were  actually  heard  and  determined 
on  one  account,  when  later  accounts  are  exhibited.^  But,  in 
order  to  give  a  conclusiveness  to  partial  accounts,  it  appears 
proper  not  only  that  no  appeal  should  be  taken,  but  also  that 
the  account  should  have  been  allowed  after  the  usual  citation 
to  parties  interested,  or  their  appearance  or  waiver  of  notice ; 
for,  as  in  a  final  account,  the  decree  of  allowance  on  a  partial 
account  ought  not  to  bind  those  who  were  not  made  parties 
to  the  accountins:.* 


1  Rhoad's  Appeal,  39  Penn.  St.  186. 
The  contirmation  of  a  partial  adminis- 
tration account  is  conclusive  as  to  mat- 
ters embraced  therein.  Fross's  Appeal, 
105  Penn.  St.  258.  A  partial  account 
may  be  made  the  subject  of  probate  in- 
vestigation at  discretion.     2  Dem.  289. 

2  Shindel's  Appeal,  57  Penn.  St.  43. 
As,  e.g.,  on  a  later  account  the  represen- 
tative may  be  charged  with  money  re- 
ceived by  him  before  the  confirmation 
of  the  preceding  account,  and  not  ac- 
counted for.     lb. 

3  Mass.  Pub.  Stats,  c.  144,  §  9;  Smith 
V.  Button,  4  Shepley,  308;  Cummings 
z/.  Cummings,  128  Mass.  532;  Wiggin  z-. 
Swett,  6  Met.  194. 

*  Supra,  §  523;  Crawford  v.  Redus, 
54  Miss.  700.  Mass.  Pub.  Stats,  c.  144, 
§  9,  expressly  provides  that  when  such 
account  is  settled  "  in  the  absence  of  a 
person  adversely  interested,  and  without 
notice  to  him,"  such  account  may  be 
opened  on  his  application  at  any  time 
within  six  months  after  the  settlement 
thereof. 

An  executor  or  administrator  having 
been  surcharged  or  falsified  on  excep- 

65 


tions  to  his  administration,  all  parties 
interested  in  the  surplus  are  entitled  to 
participate  in  the  balance  as  finally  as- 
certained, in  due  proportion,  though 
some  of  them  filed  no  exceptions  to  the 
account.  Charlton's  Appeal,  34  Penn. 
St.  437.  It  is  prudent,  when  the  ac- 
countant finds  his  account  disputed  in 
important  respects,  for  him  to  request 
the  party  objecting  to  specify  in  writing 
the  items  objected  to  ;  for  then,  the  ac- 
count being  once  settled,  the  particular 
items  disputed  and  determined  will  be 
shown  by  the  record.  A  Massachusetts 
statute  provides  that,  upon  the  settle- 
ment of  an  account,  all  former  accounts 
rendered  in  the  course  of  settling  the 
same  estate  may  be  so  far  opened  as  to 
correct  a  mistake  or  error  therein;  but 
that  a  matter  which  has  been  previously 
heard  and  determined  by  the  court, 
shall  not,  without  leave  of  the  court,  be 
again  brought  in  question  by  any  of  the 
disputants.  Mass.  Pub.  Stats,  c.  144, 
§  9;  Cummings  ?'.  Cummings,  128  Mass. 
532;  Wiggin  V.  Swett,  6  Met.  194. 
And  this  is  also  the  Ohio  rule.  Watts 
V.  Watts,  38  Ohio  St.  480. 
O 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  527 

§  5-7-  Settlement  upon  a  Final  Accounting  ;  Distribution,  etc. 
—  The  rendering  of  a  final  account  to  the  probate  judge  or  sur- 
rogate appears  to  be,  strictly  speaking,  a  proceeding  distinct 
from  the  settlement  thereof  ;  that  is  to  say,  the  e.xecutor  or 
administrator  sets  forth  in  his  accounts  the  true  condition  of 
the  trust,  and  of  his  administration,  without  bringing  into 
his  statement  the  payments  made  to  any  of  the  distributees 
or  residuary  legatees  on  account.  Usually,  in  our  practice,  a 
decedent's  estate  is  closed  in  the  probate  accounting ;  pay* 
ments  made  in  true  proportion  to  all  proper  parties  being 
thus  exhibited,  without  the  formality  of  a  further  decree,  as 
for  distribution.  But,  when  this  course  is  pursued,  the  dis- 
tribution statement  or  schedule  should  be  kept  distinct ;  for 
the  probate  accounting,  in  theory  and  apart  from  local  code  or 
practice,  settles  nothing  but  the  basis  upon  which  distribution 
may  afterwards  be  made  in  a  proper  tribunal,  and  ascertains 
what  balance,  if  any,  is  left  for  that  purpose.^ 

In  some  States,  therefore,  the  decree  made  upon  an  ad- 
ministrator's final  accounting  determines  simply  the  amounts 
received  and  paid  out  by  the  representative,  and  the  balance 
due  from  him  to,  or  to  him  from,  the  estate  ;  and  a  decree  of 
distribution,  settling  the  rights  of  residuary  legatees  or  dis- 
tributees, is  afterwards  in  order.^  The  distribution  of  intes- 
tate estates  lies  peculiarly  within  the  province  and  jurisdic- 
tion of  American  probate  courts  ;   and  local  statutes  define 

1  See  Ake's  Appeal,  21  Penn.  St.  320 ;  the  mere  ascertainment  of  the  final  cash 

Smith  V.  Van  Kuren,  i  Barb.  Ch.  473;  balance  in  the  hands  of  the  executor  or 

Tappan  z'.  Tappan,  30  N.  H.  50;  Fleece  administrator.     A  payment  of  that  bal- 

w.  Jones,  71  Ind.  340;    Arnold  z*.  Smith,  ance    is   also   included,  so  that  nothing 

14  R.  1.   217.     Where  the    distributees  shall  remain  to  be  done  by  him  in  his 

or    residuary     parties    in    interest    are  fiduciary  character  to  complete  the  exe- 

clearly    known,    the    representative    is  cution  of  the  trust.     Dufour  v.  Dufour, 

practically  safe  in  settling  with  them  on  28  Ind.  421. 

their  several  receipts  for  their  respective  It  is  irregular  practice  to  petition  for 

proportions,    and    rendering    his    final  an  account  and  for  distribution  together, 

account    as  upon    such  a  distribution,  1 1  Phila.  43. 

thereby  dispensing  with  formalities  and  ^  Johnson  v.  Richards,  5  Thomp.  & 

needless  delay.     Legacies,   in    general,  C.  (N.  Y.)  654;  15  N.  J.  L.  92;    7  Bax- 

like    creditors'    claims,    are   paid    upon  ter,    406.     A  formal    decree  may  he  a 

proper  vouchers.  needful  preliminary  to  suing  on  the  ad- 

The  words  '•  final  settlement  "  in  a  ministrator's  official  bond, 
statute  may  be  construed  not  to  signify 

651 


§527 


EXECUTORS    AND    ADMINISTRATORS.         [PART    VII. 


the  method  by  which  the  administrator  or  any  one  of  the 
distributees,  may,  on  application  to  the  probate  court,  obtain 
an  appropriate  decree.^ 

But,  as  to  testate  estates,  a  probate  court  has  no  inherent 
jurisdiction  to  decide  who  are  entitled  as  legatees  under  the 
will  ;  nor  can  it,  in  the  absence  of  some  enabling  act,  decree 
to  whom,  or  at  what  time,  legacies,  or  the  residuary  fund,  shall 
be  paid.2  Agreeably,  however,  to  the  jurisdiction  conferred 
upon  probate  courts  in  various  States,  this  court,  subject  to  the 
usual  appeal,  may  settle  all  questions  relative  to  legacies ;  and 
accordingly,  where  the  construction  of  a  will  is  necessary  to 
determine  questions  arising  on  the  account  of  administration, 


^  The  decree  of  distribution,  which 
is  founded  upon  the  final  balance  shown 
by  the  accounting,  specifies  the  names 
of  persons  who  are  entitled  to  share  in 
the  estate  and  the  amount  payable  to 
each.  Loring  v.  Steineman,  \  Met. 
204;  Smith  Prob.  Pract.  196.  A  decree 
in  favor  of  a  distributee  is  conclusive  as 
to  amount,  allowing  for  all  previous  ad- 
vancements. Cousins  V.  Jackson,  49 
Ala.  236. 

After  an  administrator  has  made  dis- 
tribution without  judicial  direction,  he  is 
personally  Hable,  if  others  entitled  to 
distribution  appear  of  whose  existence 
he  had  no  knowledge.    2  Call  (Va.)  95. 

In  some  States  an  order  of  distri- 
bution is  imperative.  19  La.  Ann.  97. 
Accounts,  with  items  showing  partial 
and  unequal  payments  to  distributees, 
do  not  supply  the  correct  balance  upon 
which  distribution  is  to  be  made.  See 
53  Ga.  282. 

The  notice  requisite  for  a  decree  may 
be  prescribed  by  statute,  otherwise  the 
notice  is  such  as  the  court  in  its  discre- 
tion shall  deem  proper.  I  Met.  204. 
See  49  Wis.  592;  60  111.  27.  The  pro- 
bate court  has  no  authority  to  make  an 
order  for  distribution  to  the  assignee  of 
a  distributee's  share.  Knowlton  v. 
Johnson,  46  Me.  489;  Holcomb  v. 
Sherwood,  20  Conn.  418;   Portevant  v. 


Neylans,  38  Miss.  104.  And  it  is  no 
valid  objection  to  a  decree  of  distribu- 
tion that  it  was  made  on  its  face  in  favor 
of  parties  who  were  not  applicants  for 
the  decree,  or  whose  shares  had  been 
satisfied  or  released.  Sayrez/.  .Sayre,  16 
N.  J.  Eq.  505.  Nor  should  the  admin- 
istrator be  thus  decreed  to  apply  the  dis- 
tributee's share  to  a  debt  due  to  the 
administrator  personally.  13  Ala.  91; 
3  Grant  (Pa.)  109;  25  Miss.  252.  Nor 
to  make  deduction  from  the  share  of 
any  one  on  account  of  a  debt  he  owes 
to  the  estate.  17  Mass.  81.  But  such 
equities  may  be  regarded  in  the  course 
of  compliance  with  a  decree  of  distribu- 
tion. See  6  Ired.  Eq.  341 ;  2  Barb. 
Ch.  533;  29  Penn.  St.  208;  3  Cranch, 
C.  C.  61.  And  it  would  appear  that  a 
bond  fide  payment  made  under  the 
decree  of  distribution  to  the  attorney  in 
fact,  or  actual  assignee  of  the  distribu- 
tee named  therein,  is  a  compliance  with 
the  order.  Marshall  v.  Hitchcock,  3 
Redf.  (N.  Y.)  461. 

2  Smith  V.  Lambert,  30  Me.  137; 
Cowdin  V.  Perry,  1 1  Pick.  503.  Lega- 
cies in  many  States  may  be  sued  for  and 
recovered  at  common  law.  Farwell  v. 
Jacobs,  4  Mass.  634;  Smith  v.  Lambert, 
30  Me.  137.  Beyond  this,  the  subject 
is  more  especially  one  of  chancery  juris- 
diction, and  the  probate  records  are  not 


652 


CHAP.  I.J  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §  5^3 

the  court  of  probate  jurisdiction  in  such  States  may  pass  upon 
the  construction  of  the  will,  for  this  attaches  as  incidental 
to  the  accounting.^  Decrees  which  confirm  the  accounts  of 
executors  or  administrators  are  not  to  be  opened  and  re-exam- 
ined, at  all  events,  where  the  balance  thereby  found  to  be  due 
has,  in  the  meantime,  been  actually  paid  and  discharged. ^ 
But  various  local  codes  provide  for  equitable  relief,  whether 
by  petition  in  the  probate  court,  or  otherwise,  so  as  to  reopen 
afterwards  a  probate  settlement  upon  a  proper  showing  of  mis- 
take or  fraud,  and  by  a  direct  attack  upon  that  settlement.^ 

§  5-S.  Conclusiveness  of  the  Final  Settlement  in  the  Probate 
Court.  —  The  final  settlement  of  an  executor  or  administra- 
tor with  the  probate  court  is  conclusive,  operating  as  the 
judgment  of  a  court  of  competent  authority,  with  jurisdiction 
of  the  subject-matter  and  of  the  person,  and  cannot  be  called 
in  question,  except  by  a  direct  proceeding,  such  as  a})j)eal  or 
writ  of  error  ;■*  and  only  in  the  probate  court  when  impeached 
for  fraud  or  manifest  error  ;  though,  if  the  proceedings  in  that 
court  were  such  that  they  may  be  treated  as  a  nullity  on 
account  of  fraud,  the  executor  or  administrator  may  be  cited 
to  account  there  anew.^  The  probate  settlement  remains 
conclusive  evidence  not  only  of  the  fact  of  receipts  and  pay- 
ments, as  specified,  but  of  the  validity  of  those  receipts  and 
payments ;  ^  nor  can  the  decree  of  the  probate  court,  duly 
allowing  the  final  account  of  the  representative,  be  collaterally 
impeached  ;  as  in  an  action  at  law  against  him,  upon  a  claim 
against  the  deceased.'' 

conclusive  of  the  rights  of  such  parties.  Estate,  15  Abb.  (N.  Y.)  Pr.  12;   Smith 

though    doubtless    important    evidence.  Prob.  Pract.  183. 

But  statutes  may    affect    this   question,  ^  Davis  v.  Cowden,   20    Pick.   510; 

enlarging  the  powers  of  a  probate  court  supra,  §  526,  note;   Decker  v.  Elwood, 

to    that    end.     Sanford    v.    Thorp,    45  I  Thomp.  &  C.  48. 

Conn.  241.  ^  I  Hoffm.  202;    Burd  v.  McGregor, 

1  Purely  V.  Hayt,  92  N.  Y.  446.  2  Grant,  353;    52  Cal.  403. 

2  Lehr's  Appeal,  98  Penn.  St.  25.  "  Parcher  v.   Bussell,   11   Cush.  107; 

^  See  Arnold  z'.  .Spates,  65  Iowa,  570;  Harlow  v.  Harlow,  65  Me.  448;  San- 
various  local  codes;  Brandon  2/.  Brown,  ders  v.  Loy,  61  Ind.  298;  §  526;  13 
106  111.  519.  Lea,  728.    Where  the  administr.ntor  of  a 

*  Caldwell  v.  Lockridge,  9  Mo.  362;  deceased  partner  in  a  firm  has  settled 
Barton  v.  Barton,  31;  Mo.  158;  Aus-  with  the  surviving  partners,  and  his 
tin  V.    Lamar,    23   Miss.    189;   Brick's     account,  including  the  account  received 


§528 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


While  a  decree  of  the  probate  court,  settling  an  executor's 
or  administrator's  final  account,  partakes  of  the  nature  of  a 
final  judgment,  its  conclusiveness  is  nevertheless  restricted 
to  the  matters  involved,  and  the  items,  together  with  the 
surplus,  as  passed  upon  and  shown  of  record.^  Nor  is  the 
decree  of  distribution,  as  to  the  balance  shown  by  the  admin- 
istration accounts,  a  payment,^ 

An  executor  or  administrator  whose  accounts  have  once 
been  settled  will  not  be  ordered  to  account  further  because 
of  the  existence  of  possible  assets  not  within  his  control,  but 
which,  after  a  third  party  shall  have  acted,  may  come  to  his 
hands.^  And  the  reasonable  presumption  from  a  probate 
decree  which  judicially  settles  the  representative's  accounts, 
where  all  the  parties  interested  have  been  cited,  is  that  the 


from  such  settlement  has  been  allowed 
by  the  probate  court,  that  court  should 
not  reopen  the  account  upon  his  succes- 
sor's petition  upon  any  ex  parte  or  insuffi- 
cient charge  that  the  surviving  partners 
induced  the  settlement  by  fraud.  Blake 
V.  Ward,  137  Mass.  94. 

1  A  balance  found  due  upon  formal 
accounting  may  in  some  cases  be  a  cash 
balance  ;  and  a  careful  executor  or  ad- 
ministrator will  take  heed  that  items  of 
doubtful  value,  which  may  affect  a  just 
cash  balance  for  distribution,  are  duly 
stated  at  the  final  hearing,  and  weighed 
by  the  court.  But  the  balance,  as  found 
on  such  accounting,  is  in  strict  truth  a 
balance,  not  of  money,  but  of  the  estate 
undisposed  of  remaining  for  distribution, 
and  the  schedules  will  frequently  show 
that  this  balance  is  made  up  of  various 
items  of  personal  property  not  reduced 
to  cash,  which,  at  their  stated  valuation, 
the  representative  stands  ready  to  trans- 
fer. Where,  therefore,  the  representa- 
tive finds  himself  unable  to  use  the 
assets  upon  a  cash  valuation,  he  should 
apply  to  the  probate  court  for  corre- 
sponding relief;  and  the  order  of  dis- 
tribution may  be  made  out  or  amended 
in  conformity  to  the  facts,  and  as  essen- 
tial justice  requires.  But,  after  the  time 
is  past  for  the  representative  to  distrib- 
ute the  surplus  to  those  entitled  thereto, 


and  such  distribution  may  be  assumed 
to  have  taken  place,  he  is  no  longer 
concerned  in  asking  relief  of  this  char- 
acter. Sellero's  Appeal,  36  Conn.  186. 
That  one  may  be  cited  to  account  for 
what  does  not  appear  on  his  accounts, 
see  Flanders  v.  Lane,  54  N.  H.  390. 

-  It  is  not  a  payment  so  as  to  dis- 
charge the  executor  or  administrator, 
nor  is  it  a  payment  so  as  to  exonerate 
the  fund  distributable.  The  decree 
gives  to  the  distributee  a  remedy  against 
the  executor  or  administrator  personally 
for  his  proportion  of  the  fund  found  to 
be  in  the  latter's  hands,  but  this  does 
not  impair  his  remedy  against  the  fund 
itself.  Nothing  short  of  actual  payment, 
or  some  act  of  the  distributee  to  its 
prejudice,  will  exonerate  the  trust  fund 
from  the  distributee's  claim.  Brown,  J., 
in  Clapp  V.  Meserole,  38  Barb.  661. 
And  see,  as  to  the  form  of  such  decree 
of  distribution,  McCracken  v.  Graham, 
14  Penn.  St.  209. 

As  to  the  effect  of  a  settlement  of  the 
residue  out  of  court,  after  a  partial  set- 
tlement in  court,  see  27  Ohio  St.  159. 

3  .Soutter,  Re,  105  N.  Y.  514.  And  see 
as  to  an  accounting  for  additional  assets 
after  a  partial  accounting;  which  was 
in  the  court's  discretion  until  it  could  be 
made  a  final  accounting,  3  Dem.  414. 


654 


CHAP.  I.J  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTKATOKS.    §  53O 

account  was  correct,  and  all  the  assets  have  been  accounted 
for.  A  further  accounting,  therefore,  should  only  be  ordered 
when  it  appears  clearly  that  there  are  other  matters  not 
embraced  in  the  former  account,  for  which  the  representative 
is  responsible,  and  has  not  accounted.^ 

§  5-9-  Perpetuating  Evidence  of  Distribution  and  procuring  a 
Final  Discharge. —  It  is  provided  expressly  in  various  States, 
that  the  executor  or  administrator  shall  have  his  final  dis- 
charge, and  may  perpetuate  the  evidence  of  his  payments  or 
distribution  of  the  surplus,  as  of  record.  The  usual  course  is 
for  him  to  return  the  court's  decree  of  distribution,  with  in- 
dorsements, showing  full  payments  made  under  it,  or  within 
a  specified  time  to  present  what  is  in  substance  a  final  ac- 
count, exhibiting  the  distribution  of  the  balance  for  which 
he  was  accountable  to  the  parties  entitled.^  Unclaimed 
moneys,  which  the  court  has  ordered  paid  over,  may  be  placed 
on  deposit  with  the  judge,  or  in  the  public  treasury,  accord- 
ing as  local  enactments  prescribe,  thereby  discharging  the 
executor  or  administrator,  and  his  sureties,  from  all  further 
responsibility  for  the  funds.^ 

In  some  States  it  appears  to  be  the  practice  of  the  probate 
court  to  enter  a  judgment  of  dismissal  by  way  of  discharg- 
ing liability  on  the  part  of  the  personal  representative.* 

§  530-  Appellate  Jurisdiction  as  to  Probate  Accounting. — 
Appellate  jurisdiction  frorn  our  probate  tribunals  is  carefully 

^  Soutter,  Re,  ib.  and  ordered  to  be  recorded.     Such  dis- 

2  The  Massachusetts  statute  provides  charge  shall  forever  exonerate  the  jiarty 

that  when  an  executor  or  administrator  and  his  sureties  from  all  liability  under 

has  made  or  delivered  over   to  the  per-  such  decree,  unless  his  account  is  im- 

sons  entitled  thereto  the  money  or  other  peached    for    fraud    or    manifest   error, 

property  in  his  hands,  as  required  by  a  Mass.  Pub.  Stats,  c.  144,  §  12. 

decree    of   the    probate    court,  he  may  ^  Mass.  Pub.  Stats,  c.  141,  §  i6. 

perpetuate  the  evidence  thereof  by  pre-  *  18  Ga.  346;    10  Ind.  528.    An  order 

seating  to  such   court,  within  one  year  of  discharge  upon  a  final  account  will 

after  the  decree  is  made,  an  account  of  not  be  regarded  as  a  final  settlement  if 

such  payments,  or  of  the  delivery  over  the  probate  records  show  property  un- 

of  such  property;    which  account,  being  disposed  of  and  debts  remaining  unpaid, 

proved  to  the  satisfaction  of  the  court,  37  Iowa,  684.     But,  if  a  settlement  is 

and   verified  by  the  oath  of  the  party,  reopened,  all  concerned  may  have  the 

shall  be  allowed  as  his  final  discharge,  benefit.     56  Ga.  297. 


§   530  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

exercised  in  most  States,  as  respects  the  probate  accounting 
just  set  forth.  And,  upon  appellate  proceedings,  the  supreme 
court  declines  to  act  as  if  entertaining  an  original  jurisdiction 
over  the  account.  For,  as  it  is  said,  the  court  of  probate  can 
only  be  deprived  of  its  statute  jurisdiction  for  the  settlement 
of  a  personal  representative's  accounts  by  some  process  or 
course  of  proceeding  which  would  legally  remove  the  settle- 
ment to  another  tribunal.  And,  hence,  probate  jurisdiction 
remains,  although  the  personal  representative,  who  had  before 
been  cited  to  settle  his  accounts,  had  neglected  to  do  so,  and 
leave  had  been  granted  to  bring  a  suit  upon  his  bond  ;  no  suit 
having  been  commenced.^  Nor  will  the  supreme  court,  as  a 
court  of  chancery,  resettle  an  administration  account  alleged 
to  have  been  fraudulently  settled  in  the  probate  court.^ 

So,  too,  it  is  held  that  former  accounts  from  the  allowance 
of  which  no  appeal  was  taken,  and  the  matters  passed  upon 
in  them,  are  not  subject  to  a  revision  and  readjustment  upon 
an  appeal  from  the  allowance  of  a  later  account  in  which  the 
same  question  was  not  before  the  probate  judg.e  for  consid- 
eration.^ 

Where  a  mistake  is  made  in  the  settlement  of  a  probate 
account,  the  course  is  to  apply  to  the  judge  of  probate  for  its 
correction,  or  to  state  the  amount  claimed  in  a  new  account ; 
unless,  when  the  mistake  is  discovered,  the  party  has  a  right 
of  appeal  to  the  supreme  tribunal,  and  may  there  have  it  cor- 
rected.^    When  the  account  of  the  representative  has  been 

^  Sturtevant  v.  Tallman,  27   Me.  78.  the  former  rule  of  conclusiveness,  but 

Appeal  does  not  lie  from  the  refusal  of  so    that,    without    any    formal    petition 

an   account   informally    presented.     50  alleging    mistake    or    error,    objections 

Ala.  39.  made  to  allowing  a  later  probate  account 

■■^  Jennison  v.   Hapgood,   7  Pick,  i;  may  amount  substantially  to  an  applica- 

Sever  v.  Russell,  4  Cush.   513.     As  to  tion  to  have  the  former  accounts  reop- 

the  States  where  liberal  chancery  powers  ened;     and    sustains    a    reopening    on 

are    asserted    by   way   of   a    concurrent  appeal,   although    an    appeal    from  the 

jurisdiction  with  probate  tribunals,  see  former  account   was  taken    to   the  su- 

supra,  §  522.  preme    court     and    there    determined. 

3  McLoon  V.  Spaulding,  62  Me.  315;  Blake  v.  Pegram,  109  Mass.  541.     And 

27  Me.  78;  49  Me.  406,  561.  see  Williams  v.  Petticrew,  62  Mo.  460; 

But,   in   Massachusetts,   the  supreme  Seymour    v.    Seymour,    67    Mo.     303; 

court,  while  disclaiming  to  act  otherwise  Sherman  v.  Chace,  9  R.  I.  166. 

than  as  an  appellate  tribunal  with  refer-  *  Stetson  v.  Bass,  9  Pick.  27;  Coburn 

ence  to  probate  accounts,  construes  the  v.  Loomis,  49  Me.  406. 
latest  legislation,  not  only  as  modifying 

656 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  53 1 

allowed  by  the  probate  judge,  and  no  appeal  is  taken,  it  can- 
not be  revised  above ;  and,  under  such  circumstances,  the 
probate  judge's  decision  that  no  mistake  has  been  made, 
concludes  the  controversy.^  If  the  probate  court  reopens, 
or  refuses  to  reopen,  a  final  accounting  in  a  proper  case,  there 
lies  a  direct  remedy  by  appeal. ^ 

§  531.  Rendering  Accounts  in  Case  of  Death,  Resignation, 
Removal,  etc.,  of  Representative.  —  American  statutes  provide 
explicitly  for  the  rendering  of  probate  accounts  in  case  of  a 
vacancy  in  the  office.  Thus,  when  one  of  two  or  more  joint 
executors  or  administrators  dies,  resigns,  or  is  removed  before 
the  administration  is  completed,  the  account  is  rendered  by 
the  survivor  or  survivors.^  And  when  a  representative  dies, 
not  having  settled  his  sole  account,  a  final  account  should  be 
rendered  by  his  own  executor  or  administrator ;  and  it  has 
been  held,  that  it  may  be  settled  by  the  administrator  of  one 
of  his  sureties,  for  the  protection  of  the  bond ;  *  since,  for  a 
deficit  beyond  the  actual  assets  to  be  administered  upon,  the 
sureties  of  a  deceased  executor  or  administrator  who  proves 
a  defaulter  in  his  trust,  are  answerable,  and  not  the  deceased 
defaulter's  own  representatives.^ 

Statutes  provide  for  the  closing  of  accounts  by  a  represen- 
tative who  resigns,  or  is  discharged  from  his  trust.  Thus,  it 
is  declared,  that  an  executor  or  administrator  shall  not  be 
permitted  to  resign  without  first  settling  his  accounts  ;  and, 
on  such  rendering,  the  court  should  have  the  account  care- 
fully examined  and  approved  like  any  other  final  account.^ 

1  Coburn   v.    Loomis,   49    Me.   406;         *  Curtis  v.  Bailey,  I  Pick.  199. 
Arnold  v.  Mower,  ib.  561.  ^  See  supra,  §  146.     But  see  2  Pen. 

2  Githens  v.  Goodwin,  32  N.  J.   Eq.     (N.  J.)  L.  562. 

286.     As  to  reopening  a  settled  account  ^  Supra,  §   156;    Waller  v.  Ray,  48 

by  proceedings  in  the  probate  court,  see  Ala.  468;   Sevier  v.  Succession  of  Gor- 

supra,  §  526.  don,  25  La.  Ann.  231.     The  parties  to 

8  Mass.  Pub.  Stats,  c.   144-    4^   Hun  this  final  accounting  are,  besides    next 

(N.  Y.)  457;    3  Dem.  236.     In  case  of  of  kin,  legatees,  or  distributees,  as  the 

the  representative's  death  pending  pro-  case  may  be,  the  successor  in  the  trust, 

ceedings   for  the  settlement  of  his  ac-  "Waller  v.   Ray,  48  Ala.   468.      Where 

counts,  the  proceedings  abate,  and  his  one  is  discharged  or  removed,  persons 

own  representative  must  account  anew,  interested    as    creditors,  etc.,  have    the 

3  Dem.  236.  usual  right  of  objecting  to  the  account. 

657 


§  532  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII, 

But,  without  appropriate  legislation,  the  probate  court  cannot, 
perhaps,  order  an  account  from  one  whose  resignation  has 
already  been  accepted.^  The  final  probate  decree,  on  settle- 
ment of  the  accounts  of  a  removed  representative,  will  con- 
clude his  sureties,^  who,  together  with  himself,  are  answerable 
for  any  defalcation  in  the  trust. 

It  is  not  to  be  inferred,  however,  that  a  final  settlement 
upon  the  accounts  of  a  representative  who  has  died,  resigned, 
or  been  removed,  while  in  the  exercise  of  his  functions,  is  a 
"final  settlement,"  so  to  speak,  of  the  estate ;  for  it  is  rather 
a  transfer  of  the  predecessor's  just  balance  to  the  successor.^ 
The  accounts  of  a  successor  should  never  be  blended  with 
those  of  his  predecessor.* 

§  532-  Accounts  by  Co-Executors  or  Co-Administrators,  Tem- 
porary Administrators,  etc.  —  The  accounts  of  co-executors  or 
co-administrators  may,  in  the  practice  of  some  States,  be 
rendered  on  the  oath  of  one  of  them.  In  Pennsylvania  and 
some  other  States,  however,  joint  representatives  may  keep 
and  file  separate  accounts,  each  charging  himself  with  a  part 
of  the  estate ;  ^  and,  it  is  held,  that  on  the  settlement  of  a 
subsequent  account  by  one,  he  is  not  chargeable  with  the 
balance  in  the  hands  of  the  other,  however  might  be  the  case 
in  a  suit  upon  their  joint  bond.^  There  may  be  advantage  in 
such  a  course ;  for,  on  general  principle,  the  settlement  of  a 
joint  account  by  co-executors  or  co-administrators,  and  its 
confirmation,  showing  a  cash  balance  in  their  hands,  admits 
and  adjudges  their  joint  liability;  and  a  division  of  the  fund 
between  them  does  not  sever  that  liability  ; "  though,  as  to 

Poulson  V.  Frenchtown  Bank,  33  N.  J.  covering  a  balance  found  due  on  the 

Eq.  618.    The  New  York  code  specifies  account    of    a    predecessor    deceased, 

the  persons  who  may  call  to  account  in  Munroe  v.  Holmes,  9  Allen,  244;  Bing- 

such  cases.     3  Dem.  251.  ham,  Ee,  32  Vt.  329. 

1  See  6  Tex.  130.  ^  ggg  ^q  Miss.  747. 

2  Kelly  V.  West,  80  N.  Y.  139.     Stat-  *  Hamaker's  Estate,  5  Watts,  204. 
utes  in  some  States  authorize  the  pro-  ^  Davis's  Appeal,  23  Penn.   St.  206; 
bate  court,  upon  a  final  account  by  a  Bellerjeau  v.  Kotts,  4  N.  J.  L.  359. 
representative  removed   from  his  trust,  ^  Davis's  Appeal,  ib. 

to  render  a  decree  against  him  for  the  "  Duncommun's  Appeal,  17  Penn.  St. 
balance  in  favor  of  the  successor.  13  268;  Laroe  v.  Douglass,  13  N.  J.  Eq. 
Ala.  749.     See,  as  to  remedies  for  re-     3o8. 

658 


CHAP.  I.J  ACCOUiNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §  533 

securities  which  appear  to  be  uncollected,  by  their  joint 
accounts,  no  conclusive  liability,  of  course,  arises.^  The  sep- 
arate accounts  of  co-representatives  cannot  be  combined  in 
making  the  distribution  ;  and,  having  filed  separate  accounts, 
they  have  no  joint  duty  to  distribute.^ 

§  533-  Effect  of  Lapse  of  Time,  etc.,  upon  Accounts.  —  Lapse 
of  time  may  justify  a  refusal  to  order  an  account  of  administra- 
tion ;  especially,  in  connection  with  other  circumstances,  such 
as  the  death  of  all  the  parties  cognizant  of  the  transactions, 
destruction  of  the  county  records,  and  loss  of  papers  ;  for, 
otherwise,  there  would  be  danger  of  injustice  to  the  deceased 
personal  representative.^  Under  ordinary  circumstances, 
however,  a  lapse  of  time  less  than  twenty  years  appears  to 
constitute  no  bar  to  the  ordering  of  a  probate  account  ;■*  but, 
where  the  administration  has  been  closed,  and  the  represen- 
tative formally  discharged,  it  may  be  different.^ 

But,  however  it  may  be  with  a  judicial  accounting,  a  court 
may  presume,  a  considerable  time  having  elapsed  since  the 
estate  should  have  been  settled  and  the  functions  of  the  rep- 
resentative terminated,  that  the  debts  have  all  been  paid,  in 

^  Lightcap's   Appeal,   95    Penn.    St.  counts,  see  local  code.   4  Dem.  450.   In 

455.  Massachusetts  special  administrators  are 

2  Heyer's  Appeal,  34  Penn.  St.  183.  held  to  account  whenever  required  by 

Co-executors,   who   have   received   and  the  probate  court ;  and  public  adminis- 

inventoried  a  trust  fund  held  by  their  trators,  who  have  given  a  general  bond, 

testator  as  executor,  and    have  jointly  render  an  annual  account  of  all    bal- 

settled  their   final  probate  account,  are  ances    in   their   hands,  besides   annual 

jointly  chargeable  with  the  trust  balance  accounts    as   to    each    separate    estate, 

ascertained  to  be  in  their  hands.  Schenck  Smith  Prob.  Guide,  163. 
V.    Schenck,    16   N.   J.   Eq.   174.     See,         ^  Stamper  v.  Garnett,  31   Gratt.  550. 

also,    §§    400-406.      The    accounts    of  As  to  a  presumption  of  settlement  after 

joint  executors    or    administrators   may  lapse  of  time,  see  9  Phila.  (Pa.)  344. 
be  rendered  on  the  oath  of  one  of  them.         *  Campbell  v.  Bruen,    i    Bradf.  224. 

Mass.  Pub.  Stats,  c.  144.    Where  one  of  Or  even  twenty-five   years.     14   Phila. 

co-executors    presents    his    account    for  297. 

settlement  without  the  other's  signature,         ^  See    Portis  v.  Cummings,    14   Tex. 

his  associate   may  contest  it.     4  Dem.  139;   5  Dem.  453.     Local  methods  are 

364.     A  joint  account  by  two  executors  not  uniform  in  this  respect.     A  decree 

primd  facie  renders  one  of  them  liable  comprising  a  settlement  of  the  account 

for  contribution  to  the  other  who  has  was  refused  a  rehearing  after  the  lapse 

paid  the  balance.    Conner  v.  Mcllvaine,  of  thirteen  years,  the  death  of  the  prin- 

4  Del.  Ch.  30.  cipal  parties,  etc.     79  Va.  468. 

As  to  a  temporary  administrator's  ac- 

659 


§  534  EXECUTORS    AND    ADMINISTRATORS.         [PART  VII. 

fact,  and  the  affairs  of  the  estate  finally  and  justly  settled. 
Final  settlements  ought  to  be  seasonably  and  directly  assailed, 
in  order  to  avoid  their  effect  as  judgments  importing  verity.^ 
Where  an  account  has  been  finally  adjusted  many  years, 
those  concerned  acquiescing,  apparently,  in  the  settlement, 
it  will  not  be  reopened,  except  upon  good  cause  shown  for 
the  delay,^  nor,  usually,  except  to  correct  mistakes  apparent ; 
but  the  representative  may  be  cited  at  any  time,  to  account 
for  assets  not  included  in  his  settled  accounts,  especially  if 
they  come  to  hand  at  a  later  date.^ 

§  534-  ^°  Account  required  from  Residuary  Legatee  giving 
Bond  to  pay  Debts,  etc.  —  Where  a  residuary  legatee  has  given 
bond  as  executor,  to  pay  the  testator's  debts  and  legatees, 
a  bill  in  equity  cannot  be  maintained  against  him  for  an 
accounting  for  assets  and  administration  in  chancery ;  nor, 
of  course,  can  a  probate  accounting  be  compelled.  For  the 
assets  of  the  estate  become  part  of  his  general  property,  and 
are  no  longer  subject  to  the  enforcement  of  a  trust  in  favor 
of  other  legatees  ;  *  though  his  own  estate  is  liable,  like  that 
of  any  debtor,  for  debts  and  legacies;  and  his  bond  affords 
security  for  the  benefit  of  all  such  claimants.^ 

1  State  Bank  7/.  Williams,  6  Ark.  156;  supra,  §  526;   Soutter,  Re,   105  N.  Y. 

Williams  7'.  Petticrew,  62  Mo.  460.   See  114.     Under    circumstances    importing 

Schoul.    Dom.    Rel.    §    372;    Gregg   v.  good  faith,  an  account  filed  late  might 

Gregg,  15  N.  H.  190;   Pierce  v.  Irish,  be  indulged  as  to  specifying  details. 

31  Me.  254;  Smith  v.  Davis,  49  Md.  470.  *  Clarke  v.  Tufts,  5  Pick.  337;    McEl- 

"^  See  Davis  v.  Cowden,  20  Pick.  510,  roy  v.  Hatheway,  44  Mich.  399. 

where  the  delay  shown  was  not  such  as  ^  Copp   v.   Hersey,  31    N.    H.    317; 

imputed  acquiescence  in  the  account.  supra,  §  249. 

8  McAfee  v.  Phillips,  25  Ohio  St.  374; 

660 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  536 


CHAPTER    II. 

CHARGES    AND    ALLOWANCES    UPON    ACCOUNTS. 

§  535-  ^'^lia*^  is  to  be  charged  to  the  Representative,  and 
what  allowed  Him.  —  In  the  present  chapter  we  shall  con- 
sider (i)  what  may  be  charged  to  the  executor  or  administra- 
tor in  his  accounts  ;  and  (2)  what  may  be  allowed  him  therein. 
We  shall  here  suppose  the  account  to  have  been  prepared 
with  items  of  the  former  kind  debited  to  him  as  under 
schedule  A.,  and  those  of  the  latter  kind  credited  under 
schedule  B.^ 

§  53^-  Representative  should  charge  Himself  with  Inventory 
Valuation  as  a  Basis ;  Corrections  of  Value,  etc.  —  First,  as  to 
charges.  While  bookkeeping  accounts  are  usually  conducted 
on  the  basis  of  receipts  or  payments  in  cash  or  their  equiva- 
lent, the  balance  being  struck  accordingly,  a  peculiarity  of 
accounting  in  most  of  our  probate  courts  is,  that  the  accoun- 
tant shall  charge  himself,  first  of  all,  with  the  total  amount 
of  personal  property  as  returned  in  the  inventory.^  Accord- 
ingly, he  is  compelled  to  carry  forward  in  schedule  A.,  the 
bulk  of  personal  assets  on  the  appraisers'  valuation ;  asking 
an  especial  credit  in  the  schedule  B.,  should  any  of  these 
assets  realize  at  a  loss  when  disposed  of,  or  be  worth  less  for 
a  distribution,  than  at  their  valuation  ;  and,  accounting,  in 
fact,  for  all  assets  which  have  come  to  either  his  possession 
or  knowledge,  and  not  for  his  actual  receipts  alone.  On  the 
other  hand,  should  particular  assets  fetch  more,  or  be  worth 
more  in  computing  the  final  balance,  than  the  amount  stated 

1  See  supra,  §  524.  Every  item  of  partnership  affairs,  if  the  surviving  part- 
receipt  and  expenditure  should  be  dis-  ner  be  executor,  aliradf.  165;  I7.\bb. 
tinctly  entered  in  the  account.     Hutch-  (X.  V.)  Pr.  165. 

inson's   .\ppeal,   34  Conn.  300;   Jones,  2  See  Bogan  r.  Walter,  i2Sm.  &  M. 

Re,    I    Redf.   263;   4    Day,    137.     The  666. 
account  should  include  a  statement  of 

661 


§   537  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

in  the  inventory,  the  representative  must  charge  himself 
with  the  excess.  So,  too,  if  assets  inventoried  as  desperate 
and  valueless,  turn  out  to  be  worth  something,  their  proper 
worth,  or  what  they  have  actually  realized,  is  to  be  debited 
to  him  in  the  account.  For,  an  inventory  appraisal  is  prinid 
facie  and  not  conclusive  proof  of  the  representative's  liability 
for  a  corresponding  amount ;  the  real  test  of  liability  by 
which  his  accounts  shall  be  settled  being,  whether  he  has 
bestowed  honesty  and  due  diligence  in  collecting,  realizing 
upon,  preserving,  and  disbursing  the  assets.^ 

§  537-  Amounts  to  be  added;  Representative  charged  ■with 
Personal  Assets  not  inventoried ;  Profits,  Income,  Premiums, 
Interest,  etc.  —  Indeed,  amounts  received  from  all  sources  not 
included  in  the  inventory,  of  the  nature  of  personal  assets, 
should  be  charged  to  the  accountant,  by  suitable  items,  in 
the  administration  account ;  not  specific  gains  upon  the 
inventory  valuation  alone,  but  new  assets,  or  such  as  from 
ignorance,  inadvertence,  or  any  other  cause,  were  omitted 
from  the  inventory  itself,^  and  the  income,  interest,  profits, 
premiums,  and  usufruct  of  every  description,  derived  out  of 
the  assets  in  the  course  of  a  prudent  and  faithful  administra- 
tion ;  including  premiums  received,  and  interest  with  which 
the  representative  ought  to  be  charged,  because  of  culpable 
carelessness  or  his  personal  appropriation  and  misuse  of  the 
assets.^  The  profits  accruing  out  of  the  decedent's  estate 
should  all  be  accounted  for,  whether  they  accrue  spontaneously 
or  by  the  representative's  acts.*  But  where  a  legatee  or  dis- 
tributee has  once  been  settled   with,   and  the  executor   or 

1  Weed  V.   Lermond,   33   Me.  492;  item  from  the  principal.     iiPhila.  113; 

Craig  V.   McGehee,    16  Ala.    41.     The  Stone  w.  Stilwell,  23  Ark.  444.    If  there 

items  of  the  inventory  need  not  be  re-  is    no    increase,  profit,    etc.,   that    fact 

peated   in   the   account;   but   only   the  should  be  stated.'     i  Redf.  (N.  Y.)  263. 

gross     amount     debited.      Sheldon    v.  *  Wms.  Exrs.   1657,  1847.     And  see 

Wright,  7  Barb.  39.  Sugden  v.  Crossland,   3  Sm.  &  G.  192, 

'■^  But,  by  the  practice  of  some  States,  The  wilful  omission   of  the    representa- 

a  new  inventory  should  be  filed  in  such  tive  to  charge  himself  with  assets  com- 

cases.     Supra,  §  230.  ing  to  his  hands  has  been  held  ground  to 

^  Sugden  v.  Crossland,  3  Sm.  &  G.  set    aside    his    settlement    for     fraud. 

192;   Allen  V.  Hubbard,  8  N.  H.  487;  Houts  v.  Shepherd,  79  Mo.  141. 

Liddell   v.  McVickar,   11  N.  J.  L.  44.  The  discussion  of  a  representative's 

Income  should  be  stated  as  a  separate  hability,  in  former  chapters,  may  suffi- 

662 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  538 

administrator  holds  one's  securities  as  agent,  he  is  no  longer 
accountable  as  executor  or  administrator.^ 

§  53^-  Charging  the  Representative  ■w^ith  Interest.  —  Chancery 
and  probate  courts,  in  modern  practice,  will  compel  the  ex- 
ecutor or  administrator  to  charge  himself  in  his  account  with 
interest,  and,  in  gross  instances,  with  compound  interest, 
where  he  has  abused  his  trust.  This  is  a  doctrine  applicable, 
both  in  England  and  America,  to  all  trustees  who  prove  de- 
linquent or  dishonorable  in  the  management  of  the  estate 
confided  to  them.  The  charge  appears  to  be  supported  on 
either  of  two  sufficient  grounds  :  one,  that,  by  perverting  the 
fund  in  question  to  his  own  use,  the  fiduciary  has  made  a 
probable  profit  for  which  interest,  or  compound  interest,  may 
be  supposed  a  fair  equivalent ;  the  other,  that  loss  of  interest, 
occurring  through  his  remissness  or  misconduct,  should  be 
made  up  to  the  fund.  In  other  words,  all  profits  made  with 
trust  moneys,  belong  to  the  trust ;  and,  furthermore,  a  cul- 


ciently  show  what  an  executor  or  admin- 
istrator should  be  charged  with.  A 
cardinal  principle  in  all  trusts,  already 
adverted  to,  is  that  the  fiduciary  shall 
make  no  personal  profit  out  of  the  trust 
beyond  what  a  court  may  fitly  allow 
him  by  way  expressly  of  compensation 
for  his  seivices ;  and  that,  whatever  ihe 
gains  out  of  the  assets,  whether  in  the 
course  of  a  rightful  management  or  a 
perversion  of  his  trust,  shall  go  to  en- 
hance the  fand,  and  not  to  enrich  him- 
self, and  be  duly  accounted  for.  Supra, 
§§  322,  332.  Profits  out  of  a  lease  be- 
longing to  the  estate,  profits  out  of  a 
trade  of  the  decedent  pursued  by  the 
representative,  profits  out  of  a  purchase 
of  assets,  profits  out  of  an  investment 
made  with  the  assets,  profits  arising 
from  a  composition,  discount,  or  deduc- 
tion of  a  claim  upon  the  estate,  all  come 
within  this  broad  principle.  Purchases 
of  assets,  or  of  the  claims  of  creditors, 
legatees,  or  distributees  upon  the  estate, 
by  the  representative,  are,  if  not  neces- 
sarily void,  treated,  at  all  events,  with 
marked    disfavor,    especially    as  to    the 


profit  he  may  make  on  them,  and  may 
usually  be  avoided  by  interested  parties. 
Supra,  §§  358,  363;  Trimble  v.  James, 
40  Ark.  393.  And  see  Wms.  Exrs. 
1842,  and  Perkins's  note;  Cook  v. 
Collingbridge,  Jacob,  607;  Hall  v.  Ilal- 
lett,  I  Cox,  134;  Wedderburn  v.  Wed- 
derburn,  22  Beav.  lOO.  The  personal 
representative  is  not  authorized  to  take 
assets  at  their  appraised  value  to  his 
own  use  and  make  what  profit  he  may 
out  of  them.  Weed  v.  Lermond,  ^^ 
Me.  492.  Bonuses  from  borrowers  be- 
long to  the  trust  estate.  Savage  v.  Gould, 
60  How.  Pr.  217;  Landis  v.  Saxton,  89 
Mo.  375.  One  who  trades  or  operates 
with  th^  assets  must  account  to  the  es- 
tate for  all  the  profits  realized.  Ilaber- 
man's  Appeal,  loi  Penn.  St.  329.  Pre- 
miums received  where  gold  commanded 
a  premium  should  be  accounted  for. 
17  S.  C.  521;  20  S.  C.  64.  Also  the 
profit  made  on  some  purchase  of  assets 
inconsistent  with  his  duty,  reserving, 
however,  the  amount  of  his  private  dis- 
bursement. 80  Ala.  II. 
1  31  Hun,  420. 


663 


§538 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


pable  failure  to  make  profit  for  the  estate,  out  of  funds  which 
should  have  been  made  productive,  is  a  waste. ^ 

Executors  and  administrators,  however,  are  charged  with 
more  reluctance  than  trustees,  for  simply  letting  funds  lie 
idle,  since  their  primary  function  is  to  administer  and  not  to 
invest ;  -  but,  for  any  wilful  perversion  of  the  assets,  they  are 
doubtless  chargeable.^     During  the  first  year,  after  the  de- 


^  Trustees  in  general  are  made  liable 
for  interest,  where  they  delay  unreason- 
ably to  invest,  or  mingle  the  trust  money 
Tyith  their  own,  or  neglect  to  settle  their 
accounts  or  pay  over  the  money,  or  dis- 
obey directions  of  the  will  or  of  a  court  as 
to  the  time  or  manner  of  investing,  or 
embark  the  funds  in  trade  or  speculation 
without  authority,  etc.  Perry  Trusts, 
§§  468-472.  Where  extra  profits  or 
bonuses  are  made  by  a  trustee,  they  be- 
long to  the  estate.  lb.  §  468.  Com- 
pound interest  is  rarely  charged  by  the 
English  chancery  unless  there  was  more 
than  mere  negligence;  some  wilful 
breach  of  trust  in  effect.  lb.  §471.  See 
as  to  payments  made  through  mistake  of 
law,  Hulkes,  Ke,  33  Ch.  D.  552.  Though, 
on  principle,  it  would  appear  that  if  the 
trustee  has  probably  derived  actual 
profit  of  interest,  compounded  with 
periodical  rests,  from  the  manner  of 
using  the  money,  compound  interest 
should  be  charged  him  by  way  of  a  just 
accounting,  independently  of  good  or 
bad  faith  on  his  part. 

.See  as  to  compound  interest  in  cases 
of  administration,  English  v.  Harvey, 
2  Rawle,  305;  Slade  v.  Slade,  10  Vt. 
192;  McCall,  Estate  of,  i  Ashm.  357; 
Scott  V.  Crews,  72  Mo.  261;  Clark, 
Estate  of,  53  Cal.  355 ;  Wms.  Exrs. 
1 85 1,  and  Perkins's  note;  Jones  7>.  Fox- 
all,  15  Beav.  388;  Jennison  v.  Hapgood, 
10  Pick.  77;  Blake  v.  Pegram,  ICX3 
Mass.  541;  2  Barb.  Ch.  213;  Hook  v. 
Payne,  14  Wall.  252. 

2  Supra,  §  322;  Wms.  Exrs.  1844- 
185 1,  and  Perkins's  notes. 

^  Executors  and  administrators  are 
liable  for  interest  if  they  mingle  assets 


with  their  private  funds.  Griswold  v. 
Chandler,  5  N.  H.  492;  i  Johns.  Ch. 
50,  527,  620;  Jacob  V.  Emmett,  il 
Paige,  142;  4Cranch,C.  C.  509;  Grigs- 
by  V.  Wilkinson,  9  Bush,  91;  Troup  v. 
Rice,  55  Miss.  278;  53  Cal.  355.  And 
see  II  Ala.  521.  Or,  where  they  are 
unreasonably  delinciuent  in  paying,  in- 
vesting, or  disijursing  funds,  as  the  law, 
the  testator,  or  the  court  may  have  ex- 
pressly directed.  3  La.  Ann.  353,  574; 
Smithers  v.  Hooper,  23  Md.  273;  6 
Daly,  259;  Hough  v.  Harvey,  71  111. 
72.  And  this  delinquency  may  involve 
a  delinquency  in  accounting.  23  Md. 
273;  Lommen  v.  Tobiason,  52  Iowa, 
665.  Or,  where  the  money  is  used  for 
private  gain  and  speculation.  Davis, 
Matter  of,  62  Mo.  450.  Where  they 
fail  to  account  for  interest  or  profits 
actually  produced  by  the  assets,  they 
are  liable  to  be  charged  with  the  highest 
rate  at  which  profit  might  have  been 
made,  and,  at  all  events,  with  interest 
at  current  rates.  Ringgold  v.  Stone,  20 
Ark.  526;  3  Harring.  469;  English  v. 
Harvey,  2  Rawle,  305.  A  conversion 
of  productive  property  into  cash,  long 
before  it  becomes  needful  for  the  pur- 
poses of  the  estate,  may  be  culpable 
negligence,  so  as  to  charge  the  repre- 
sentative with  interest.  Verner,  Estate 
of,  6  Watts,  250. 

Upon  the  executor's  or  administra- 
tor's own  debt  to  the  estate,  the  usual 
rules  of  interest  apply,  as  to  other  debt- 
ors.    Supra,  §  250. 

Interest  may  be  recoverable  from  an 
executor  on  legacies,  and,  perhaps,  on 
debts  or  claims  which  are  not  season- 
ably paid,  and  whether  he  shall  be  re- 


664 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  538 

cedent's  death,  more  especially,  the  person  who  administers 
must  often  keep  large  sums  in  his  hands  lying  idle,  and  negli- 
gence is  not  readily  inferred  from  such  conduct,  but  often  the 
reverse ;  though,  to  keep  money  long  in  his  hands,  unproduc- 
tive, might  charge  him.^  Whether  the  personal  representative 
shall  justly  be  charged  with  interest  on  funds  belonging  to 
the  estate,  the  particular  circumstances  in  each  case  must 
determine.  American  practice  does  not  appear  to  favor 
charging  the  representative  with  interest  upon  funds  which 
he  is  prepared  to  disburse,  and  deny  him  his  commissions 
or    compensation    besides,    unless    some    wilful    default    be 


imbursed  from  the  estate  depends  upon 
his  own  conduct  as  justifying  the  delay 
or  not.     Supra,  §§  440,  481. 

See  Saxton  v.  Chamberlain,  6  Pick. 
423,  as  to  examining  the  executor  or 
administrator  upon  oath,  in  order  to 
ascertain  whether  he  is  liable  for  inter- 
est. Interest  actually  received  must  of 
course  be  accounted  for.  Supra,  §  537. 
And,  if  a  representative  improperly  em- 
ploys funds  in  trade  or  speculation,  the 
beneficiaries  may  elect  to  take  the  profits 
instead  of  interest.  Wms.  Exrs.  1847; 
Rocke  z/.  Hart,  11  Ves.  61;  Robinett's 
Appeal,  36  Penn.  St.  174;  «//r«,  §  338. 
Where  an  executor  or  administrator  dies 
in  office,  liability  for  interest  may  be 
suspended  while  the  estate  is  unrep- 
resented. 6  Rich.  83.  On  improper 
payments  disallowed  in  his  account, 
one  is  not  readily  to  be  charged  with 
interest.  Clauser's  Estate,  84  Penn. 
St.  51.  As  to  interest  on  uncollected 
claims,  see  Strong  v.  Wilkinson,  14 
Mo.  1 16. 

One  who  has  diligently  and  faithfully 
discharged  his  trust  of  administralion 
is  chargeable  only  for  the  interest  he 
has  made.  iiN.  J.  L.  145;  6  Dana,  3; 
16  S.  &  R.  416.  And  for  a  mere  delay 
in  making  returns,  where  the  collection, 
management,  and  disbursement  of  as- 
sets has  been  prudent  and  honorable, 
interest  is  not  usually  imposed.  Binion 
V.  Miller,  27  Ga.  78.  But,  if  such  delay 
involves  the  beneficiaries  of  the  estate 


in  great  cost  and  trouble,  it  may,  per- 
haps, be  otherwise.  lb.  See  also  Davis, 
Matter  of,  62  Mo.  450.  Closing  a 
deposit  which  bore  interest,  and  trans- 
ferring the  fund  to  a  bank  which  pays 
no  interest,  before  it  was  necessary  to 
do  so,  does  not  render  the  executor  or 
administrator  liable  for  interest,  pro- 
vided he  does  not  mingle  it  with  his 
own  moneys,  or  use  it  for  his  own 
profit,  or  deposit  it  in  his  own  name, 
or  neglect  unduly  to  disburse  or  settle 
his  accounts.  Wms.  Exrs.  1844;  Mc- 
Queen, Estate  of,  44  Cal.  584;  12  S.  C. 
422. 

1  Wms.  Exrs.  1844,  ^"^  Perkins's 
note;  2  Cox,  115;  3  Bro.  C.  C.  73,  108, 
433;  Ashburnham  v.  Thompson,  13 
Ves.  401.  In  Griswold  v.  Chandler,  5 
N.  H.  497,  it  is  observed  that  where 
the  administrator,  without  any  just  rea- 
son, retains  money  in  his  hands  unem- 
ployed, when  it  ought  to  be  paid  over, 
or  receives  interest  for  money  which 
belongs  to  the  estate,  or  ajiplii's  it  to 
his  own  use,  he  ought  to  be  charged 
with  interest,  but  not  otherwise.  And 
see  Stearns  v.  Brown,  i  Pick.  531 ; 
Knight  V.  Loomis,  30  Me.  204;  Ogilvie 
V.  Ogilvie,  I  Bradf  356.  Pursuance  of 
duty,  in  accordance  with  the  principles 
we  have  discussed,  affords  a  fair  test. 
An  executor  charged  with  special  duties 
may  be  bound  to  invest  and  not  leave 
funds  long  idle. 


665 


§   539  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

shown. ^     Local  statutes,  however,  supply  local  rules  on  this 
subject. 2 

§  539-  Charges  on  Account  as  Concerns  Real  Estate  or  its 
Proceeds  or  Profits. —  Real  estate,  we  have  seen,  may  be  in- 
ventoried under  a  separate  head  ;  but  it  is  the  amount  of 
personal  property  alone,  as  returned  in  the  inventory,  for 
which  a  representative  is  primarily  chargeable  in  account, 
since  one  does  not,  in  that  capacity,  deal  usually  with  a  de- 
cedent's real  estate,  unless  an  emergency  arises.^  Nor  do 
rents  of  land  go  properly  into  an  administration  account, 
to  be  blended  with  items  of  personal  assets  ;  as  the  outlay 
or  distribution  of  such  funds  follow  distinct  rules.*  If  the 
heirs  or  devisees  permit  the  representative  to  manage  real 
property,  his  account  becomes  most  naturally  a  special  ac- 
count with  them  as  their  attorney.^ 

Where,  however,  real  estate  has  been  sold  under  a  license 
for  the  payment  of  debts,  or  under  a  power  contained  in  a  will, 
or  in  some  other  manner  lands  or  their  proceeds  come  into  the 
hands  of  the  executor  or  representative,  to  be  managed  and 
dealt  with  as  personal  assets,  they  enter  into  the  usual  admin- 
istration account  together  with  rents  and  profits  subsequently 
accruing ;  the  representative  taking  due  care  to  settle  the 
same  with  those  properly  entitled  thereto.^  Real  estate  may 
well  be  accounted  for  under  such  circumstances,  under  special 
schedules  ;  and  so  with  all  funds  set  apart  agreeably  to  law  or 
a  testator's  directions  for  special  purposes.  In  a  few  States, 
moreover,  as  we  have  seen,  both  the  real  and  personal  prop- 
erty of  a  decedent  is  temporarily  managed  by  his  executor  or 
administrator.^ 

If  in  the  sale  or  management  of  the  land,  under  due  author- 
ity as  above,  the  representative  is  guilty  of  culpable  negli- 

1  Troup    V.    Rice,    55    Miss.    278;        ^  geeBoyd, /?<>,  4  Redf.  154;  Part  VI., 
Lloyd's  Estate,  82  Penn.  St.  143.  c.  2.    Ciiattels  real,  leases,  etc.,  of  course, 

2  Clark  V.  Knox,  70  Ala.  607.  if  sold  or  underlet,  enter  into  adminis- 
'  Supra,  §§  213,  509.  tiation  accounts  with  personal  property. 
*  Supra,  §  510;  II  Phila.  1 18.  Supra,  ^  22^.  See  Gottsberger  z/.  Smith, 
^  With  regard  to  expenses  of  laborers,  2  Bradf.  86. 

etc.,  in  getting  in  crops,  see  70  Ala.  63;         '  Supra,  §  510. 
§  307- 

666 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  54  I 

gence  or  bad  faith  resulting  in  loss  to  the  estate,  he  may  be 
charged  with  such  loss  on  his  accounting.^  On  the  other 
hand  he  should  be  allowed  for  all  expenses  fairly  incurred 
upon  such  property  in  the  discharge  of  his  trust.^ 

§  540.  Charges  on  Account;  Miscellaneous  Points.  —  In  ad- 
justing an  administration  account,  the  probate  court  has 
authority  to  require  that  assets  not  inventoried  nor  credited 
by  the  executor  or  administrator,  shall  nevertheless  be  ac- 
counted for.^  And  the  validity  of  a  claim  against  the  execu- 
tor or  administrator  in  favor  of  the  estate,  as  growing  out  of 
his  misappropriation  or  abuse  of  trust,  may  thus  be  estab- 
lished.'* 

Where  the  executor's  or  administrator's  accounts  are  not 
only  untrustworthy,  but  of  a  most  suspicious  character,  he  is 
readily  liable  to  be  charged  with  omitted  assets  against  his 
own  statements  ;  though  the  question  is,  after  all,  one  of 
evidence.^ 

§  541.  Allowances  to  the  Representative;  Disbursements, 
Losses,  etc.  —  Second,  as  to  what  shall  be  allowed  an  executor 
or  administrator  in  his  accounts.  The  opposite  schedule  of 
the  administration  accounts,  or  schedule  B.,  exhibits  amounts 
paid  out  in  detail,  and  such  sums,  by  way  of  charge  to  the 
estate,  as  the  representative  may  claim  for  allowance.  As  to 
the  amounts  paid  out,  all  proper  disbursements  made  by  the 
executor  or  administrator  with  due  regard  to  rules  of  priority 
and  limitations  as  to  creditors,  in  the  course  of  settling  the 
estate,   should  here  be  credited ;  and  whether  the  debt  or 

1  Haight  V.  Brisbin,  100  N.  Y.  29.  *  Gardner  v.  Gardner,  7  Paige,  112; 

2  Part  VI.  supra  ;   Dey  v.  Codman,     Hovey  v.  Smith,  i  Barb.  372.    If,  in  the 
39  N.  J.  Eq.  258;   87  N.  C.  34.  administration  account,  the  representa- 

A.  finished  a  house  partly  erected  by  tive  does  not  charge  himself  with  any 

his  wife,  being  her  administrator,  igno-  property   whatever,   but   enters   simply, 

rant  that  she  had  left  a  will,  and  suppos-  "  the  appraisers  made  no  return  of  per- 

ing  himself  life  tenant  of  the  premises,  sonal  property,"  the  court  does  not,  by 

He  was  allowed  credit  with  its  cost  on  decreeing  allowance,  find  that  tliere  was 

his   account.      Sewell    v.    Slingluff,   62  no  property,  etc.     Moore  7^.  Holmes,  32 

Md.  592.  Conn.  553. 

^  Boston  V.  Boylston,  4  Mass.  318;  »  Downie  v.  Knowles,  37  N.  J.  Eq. 

Hurlburt   v.   Wheeler,  40  N.   H.   73 ;  513. 
Wills  V.  Dunn,  5  Gratt.  384. 

667 


§   541  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII, 

claim  originated  with  the  decedent,  or  with  himself,  he  is 
entitled  to  its  allowance  and  credit,  if  it  be  fitly  charged 
against  the  estate  on  the  general  principles  of  law  which 
apply  to  administration. 1  Even  though  he  paid  before  he 
was  obliged  to  do  so,  he  is  entitled  to  full  credit  if  the  estate 
suffered  no  damage  by  it.^ 

Following  the  general  maxims,  elsewhere  fully  discussed, 
each  credit  should  be  allowed  according  to  what  was  honestly 
and  prudently  disbursed.  If  the  representative  has  paid  off 
claims  at  a  discount,  the  estate  shall  reap  the  benefit  ;^  while, 
for  what  he  may  have  paid  out  imprudently,  or  dishonestly,  or 
illegally,  full  credit  cannot  be  allowed.'*  Claims  which  have 
been  paid  out  in  the  exercise  of  a  sound  and  prudent  discre- 
tion, where  the  local  practice  leaves  this  fiduciary  to  settle 
and  adjust  with  creditors,  should  be  allowed;^  and  it  is  not 
enough  for  their  disallowance,  that  their  payment  might  pos- 
sibly have  been  resisted.^  The  same  considerations  hold 
true  of  paying  allowances  to  widow  or  children,  legacies  and 
distributive  shares.  As  distribution  can  only  be  safely  made 
upon  a  final  surplus,  an  administration  account  which  credits 
all  advancements  to  distributees,  as  they  happen  to  be  made, 
without  reference  to  the  respective  shares  and  their  amounts, 
is  erroneous  in  form.'^  Disbursements  by  way  of  distribution, 
are  to  be  reckoned  on  a  division  of  the  balance,  all  distribu- 
tees being  treated  fairly.  And  on  such  a  basis,  for  whatever 
is  advanced  by  the  representative  to  parties  in  interest  he 
may  reimburse  himself.^  What  a  retiring  representative  pays 
over  to  his  successor  he  should  be  credited  with.^ 

1  Supra,  §  441 ;  Edelen  v.  Edelen,  1 1      tion,  and  the  residuary  legatees  opposed 
Md.    415.     "Expenses  of    settling  the     the  settlement. 

estate  "  ought  to  be  specified  by  items,  ^  Frazer,  Re,  92  N.  Y.  239. 

not  allowed  as  a  gross  sum.     30  Conn.  ^  Pearson  z^.  Darrington,  32  Ala.  227; 

205.  Rittenhouse  v.  Levering,  6  \V.  &  S.  190; 

2  Milhrd  v.  Harris,  119  111.  85.  Adair  v.  Brimmer,  74  N.  Y.  539;  §  527. 
8  Paff  z/.  Kinney,  i    Bradf.    Sur.   I;  ^  See  Part  V.,  c.  5;   Lyle  z'.  Williams, 

supra,  §  638;    Carruthers  v.  Corbin,  38  65  Wis.  231 ;    Gundry  v.  Heniy,  65  Wis, 

Ga.    75;   Chevallier    v.  Wilson,  i  Tex.  559.     Kost's  Appeal,  107  Penn.  St.  143. 

161.     See  8  N.  H.  444.  9  Even  though    he    pays    before  his 

*  Supra,  §  431.  successor  qualifies,  he  may  credit  him- 

^  See  supra.  Part  V.,  c.   i ;   Rogers  self  with  the  payment,  so  long  as  the 

V.  Hand,  39  N.  J.  Eq.   270.     Where  a  successor  becomes  duly  charged  with  it. 

claim  was  compromised  to  avoid  litiga-  Allen  v.  Shriver,  81  Va.  174. 

668 


CHAP.  11.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  542 

Where  assets  realize  less  on  sale  or  collection,  or  otherwise 
prove  less  valuable  than  as  appraised  in  the  inventory,  the 
loss  or  depreciation  should  be  stated  by  way  of  credit  ;  ^  and 
if  proper,  allowance  will  be  made  accordingly.^  Nothing  can 
be  allowed  one,  however,  inconsistent  with  the  just  fulfilment 
of  his  fiduciary  obligations  ;  but  he  is  chargeable  with  all 
losses  resulting  from  his  maladministration. 

§  542.  Allow^ances  to  the  Representative  ;  Subject  .continued  ; 
his  Reasonable  Expenses,  etc.  —  Disbursements  Credited  may 
include  expenses  of  last  sickness,  the  funeral  and  burial  ex- 
penses, the  outlay  for  cemetery  lot  and  monument,  all  of 
which  have  been  sufficiently  discussed  •/■^  together  with  those 
other  preferred  claims,  commonly  styled  the  charges  of  ad- 
ministration, as  to  which  last,  the  representative  submits  his 
claim,  as  for  a  personal  allowance,  more  directly  to  the  dis- 
cretion of  the  court  upon  accounting.  For  an  executor  or 
administrator  cannot  pay  himself ;  but  his  compensation  is 
judicially  decreed,  either  expressly  or  by  the  allowance  of  his 
account.^  All  reasonable  charges  incurred  for  the  benefit  of 
the  estate  are  to  be  allowed  to  a  faithful  representative,  to- 
gether with  a  reasonable  recompense  for  his  trouble.^  And 
thus  may  he  be  indemnified  against  loss  upon  contracts  re- 
lating to  the  estate,  where  he  has  necessarily  incurred  a  per- 
sonal liability.'' 

Thus,  where  the  executor  or  administrator  pays  a  debt  or 
discharges    an    obligation,   which    constituted  a  just   charge 

1  For,  reckoning  upon  the  basis  of  tor  will  not  be  allowed  for  the  expense 

an    inventory    value,    the     accountant  of  unnecessarily  removing  his  intestate's 

debits   himself  with    gain,  and   credits  body  from  a  suital)le  place  of  interment 

himself  with  loss,  instead  of  accounting  where  the  immediate  family  wished  it  to 

for  gross  amounts  actually  realized.  remain.     WatUins  t'.  Komine,  106  Ind. 

-  Sttpra,  §  362.     As  upon  a  sale  of  378.     And  as  to  necessaries  for  support 

stock.     Jones,  i^jr/a^'/f,  4Cr.  C.  C.  185;  of  the  family,  see  5?<;»r^7,  §  448. 
Jones,  Re,    i   Redf.    263.     Or   where  a  *  See  Collins  v.  Tilton,  58  Ind.  374. 

debtor,  supposed  with   good  reason    to  ''  Nimmo  v.  Commonwealth,  4   H.  & 

be  good,  turned  out  insolvent.      Cline's  M.  57;   Pearson  v.  Darrington,  32  Ala. 

Appeal,  106  Penn.  St.  617.     Or  in  case  227;    Edelen   v.   Edelen,    11    Md.   415; 

of  a  prudent  deposit  of  funds  in  a  bank  Glover  v.  Halley,  2  Bradf.  291;    Clarke 

which    afterwards    fails.     38  N.  J.  Eq.  v.  Blount,  2  Dev.  Eq.  51 ;   Wilson,  Re, 

259.     See  Part  IV.,  c.  s.  2-5.  2  Penn.  St.  325.     But  see  supra,  §  315. 

8  See  supra,  §  421.     An  administra-  *  Supra,  §  259. 

669 


§   542  EXECUTORS    AND    ADMINISTRATORS.  [pART  VII. 

against  the  estate,  out  of  his  private  funds,  he  may  claim  an 
allowance  for  the  same  in  his  account.^  And  though  he 
should  have  paid  prematurely,  yet  for  that  which,  regarding 
legal  priorities,  was  then  justly  payable,  he  may  claim  re- 
muneration.^  Payments  made  in  good  faith,  under  a  de  facto 
appointment,  may  be  allowed,  notwithstanding  a  revocation 
of  the  appointment  afterwards.^  A  sacrifice  of  assets  to 
meet  obligations  may  be  justified  as  not  unreasonably  im- 
prudent.* And,  where  the  proper  disbursements  exceed  the 
receipts,  relief  may  be  had  from  other  property  belonging  to 
the  estate,  as  from  the  decedent's  lands,  if  the  personal  assets 
prove  insufificient.^  The  charge  of  interest  by  a  representa- 
tive, for  payments  from  his  own  means,  is  viewed  with  sus- 
picion ;  yet  interest  may  be  allowed  him  on  sums  advanced 
by  him,  for  necessary  outlays  to  preserve  the  assets  or  for 
debts  carrying  interest.^ 

But  special  costs  and  expenditures,  incurred  through  the 
representative's  own  culpable  carelessness  or  misconduct,  he 
cannot  fasten  upon  the  estate.'''  Nor  can  he  claim  interest 
from  the  estate,  for  debts  paid  and  advances  from  his  private 
funds,  where  he  might  have  met  such  demands  seasonably  out 
of  the  assets.^  Nor  be  credited  with  payment  made  for  debts 
unauthorized  by  law,  from  a  sense  of  honor  and  to  save 
family  disgrace ;  for  such  payments,  if  honorably  made,  are 


1  Woods  V.   Ridley,    27    Miss.    119;         ^  Liddell  v.  McVickar,    il   N.  J.  L. 

Watson  V.  McClanahan,  13  Ala.  57.  44  ;     Mann     v.    Lawrence,     3    Bradf. 

^  Johnson  v.   Corbett,  1 1   Paige,  265.  424. 

3  Bloomer  v.  Bloomer,  2  Bradf.  339;         '  Brackett  v.  Tillotson,  4  N.  H.  208; 

supra,  §    160;   Sewell   v.  Slingluff,  62  Robbins    v.    Wolcott,    27    Conn.    234. 

Md.  592.  Losses  occurring  through  his  negligence 

*  Or,  of  course,  as  necessary,  in  order  in  taking  a  refunding  bond  from  distri- 

to  comply  with  the  law.      Wingate  v.  butees   may   render    the   representative 

Pool,  25  111.  118.  liable.     8  B.  Mon.  461.     Or  where  he 

s  Reaves    v.    Garrett,    34    Ala.    558;  pays   without    a   sufficiency    of    assets, 

Clayton  v.  Somers,   27  N.  J.  Eq.    230.  debts  to  which  others  should  have  been 

Usurious     payments     are     unfavorably  preferred.     See  Part  V.,  c.  i.    In  Evans 

regarded,  and  yet  they  may  be  allowed  v.  Halleck,  83  Mo.  376,  the  court  would 

in    meritorious     instances.       Coffee    v.  not  subrogate  him  to  the  rights  of  a  se- 

Ruffin,  4  Coldw.  487.     See  2  P.  &  H.  cured  creditor  whom  he  had  mistakenly 

(Va.)  124.     The  expense  of  keeping  a  paid. 

horse  which  could  not  be  sold  may  be         *  Billingslea  v.  Henry,  20  Md.  282. 
allowable.     7  J.  J.  Marsh.  190. 

670 


CHAP.  11.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  542 

made  from  one's  own  means. ^  For  whatever  losses  or 
impairment  of  assets  may  .have  been  occasioned  by  the 
representative's  want  of  due  diligence  or  bad  faith,  by  his 
disobedience  to  the  directions  of  a  will,  of  a  local  statute,  or 
of  the  general  law  pertaining  to  the  administration  of  the 
estate  intrusted  to  him,  he  is  accountable.  ^ 

Expenses  incidental  to  a  sale  of  assets,  including,  if  proper, 
an  auctioneer's  bill,  may  be  thus  charged  to  an  estate ;  ^  and 
in  certain  sales  a  broker's  services  are  well  employed.''  Under 
some  circumstances,  the  expense  of  an  agent,  collector,  or 
bookkeeper,  may  be  charged  to  a  reasonable  amount ;  ^  though 
not  as  an  extra  charge,  where  the  agent  was  needlessly  em- 
ployed to  do  what  the  representative  might  personally  have 
done.^  Likewise,  the  cost  of  publishing  citations,  and  other 
expenses  attending  the  probate  proceedings.'^  Valuable 
services  rendered  in  procuring  assets,  and  even  the  services 
of  a  detective  or  other  expert,  or  of  some  one  employed  to 
procure  evidence  or  serve  as  a  witness,  where  the  service  was 
needful  or  just.^ 

Whether  the  executor  or  administrator  can  claim  for  travel- 
ling expenses  to  and  from  court,  board  and  lodging,  will  de- 
pend upon  custom  and  the  special  circumstances  ;  and  all 
expenses  of  this  nature  must  have  been  reasonably  and  bond 
fide  incurred  in  prosecuting  the  business  of  the  estate;^  but 

1  Jones  V.  Ward,  10  Yerg.  160.  derson  v.  Simmons,  t,},  Ala.  291 ;  16  La. 

2  Part  IV.,  cs.  2,  5  in  detail;  Weldy's  Ann.  256;  i  Harp.  Ch.  224.  And  see 
Appeal,  102  Penn.  St.  454.     A  loss  of     16  Abb.  Pr.  N.  s.  457. 

property  occurring  through  the  repre-  ^  Gwynn  v.  Dorsey,  4  Gill  &  J.  453. 
sentalive's  culpable  neglect  to  apply  for  '  Reynolds  v.  Reynolds,  11  Ala.  1023. 
an  order  of  distribution  has  been  charged  In  American  practice,  a  charge  fur  cleri- 
to  him.  Sanford  v.  Thorp,  45  Conn,  cal  services  is  not  generally  allowed, 
241.  Cf.  8  N.  H.  444.  And  for  dam-  though  special  circumstances  may  jus- 
ages  to  distributees  by  his  unreasonable  tify  such  charges.  3  Redf.  465;  Miles 
delay.     71  Ala.  163.  v.  Peabody,  64  Ga.  729.     In  England, 

3  Pinckard  v.  Pinckard,  24  Ala.  250.  clerk-hire,  etc.,  is  more  naturally  al- 
This  does  not  include  liquors  furnished  lowed,  because  the  fiduciary  can  receive 
at  an  auction,  nor  usually  any  re-  no  personal  compensation.  See  Perry 
freshments  to  customers.      Griswold  v.  Trusts,  §  912. 

Chandler,  5  N.  H.  492.  »  Lewis,  Re,  35  N.  J.  Eq.  99;  Greene 

*  See    Mvrick    Prob.    86;    Tucker  v.     f.  Giimshaw,  11  111.  389. 

Tucker,  29  N.  J.  Eq.  286.  ^  Disallowed    in    3   Hayw.    123.     An 

s  McWhorter  v.  Benson,  Hopk.  28;     administrator   has   no   right   to   charge 

Morrow  v.  Peyton,  8  Leigh,  54;   Hen-     considerably  more  by  reason  of  living  at 

671 


§  542  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

a  collateral  relative  cannot  charge  the  estate  for  offices  prop- 
erly gratuitous  and  kind,  even  though  he  be  executor  or  ad- 
ministrator.^ 

An  executor  or  administrator  should  not  charge  the  estate 
for  services  rendered  by  him  during  his  decedent's  lifetime, 
of  apparently  a  gratuitous  character  or  recompensed  by  a 
legacy ;  nor  upon  any  iniquitous  claim.^  But  for  a  bond  fide 
debt  due  him  by  the  decedent,  he  may  claim  allowance  as 
creditor  on  the  usual  footing ;  all  proper  offsets  being  duly 
reckoned.^  Profits  that  should  have  been  made  as  well  as 
those  actually  made  out  of  the  assets  may  be  charged  in  a 
strong  case  against  the  representative,  as  a  penalty  for  his 
fraud  or  obvious  mismanagement,  and  so  as  to  put  the  estate 
at  its  just  value.^  And  whatever  the  true  principle  as  to 
requiring  an  executor  or  administrator  to  charge  himself  ab- 
solutely with  a  debt  which  he  personally  owes  the  estate,^ 
there  can  be  no  doubt  that  if  he  was  well  able  to  pay  when 
he  assumed  the  trust,  he  should  be  charged  with  it  on  his 
final  account,  though  by  that  time  he  was  insolvent." 

But  an  executor  or  administrator  who  in  a  proper  case  of 
doubtful  title  is  party  to  a  bill  of  interpleader,  is  not,  pending 
its  determination,  chargeable  with  a  sum  which  may  ulti- 
mately be  decided  to  belong  to  the  estate.'  Nor  is  the  rep- 
resentative necessarily  to  be  charged  with  the  difference 
between  what  was  offered  him  for  property  of  the  estate  and 
what  he  sold  it  for ;  the  question  being  his  exercise  of 
good  faith  and  due  care  and  diligence  under  all  the  circum- 
stances.^ 

a  distance    from   the   place  where   his  Hill,  2  Desau.  279.     Dickie  v.  Dickie, 

duties  have  to  be  performed.     Watkins  80  Ala.  37. 

V.  Romine,  106  Ind.  378.     Actual  trav-  *  Grant  v.  Reese,  94  N.  C.  720. 

elling  expenses  were  allowed  in  Dey  v.  ^  See  §   208;    Baucus  v.   Stover,  89 

Codman,  39  N.  J.  Eq.  258.    As  to  travel  N.  Y.  i  (which  reverses  s.  c.  24  Hun, 

on  business  of  the  estate  with  one's  own  109).     And  see  69  Cal.  239 

horse,  carriage,  and  fodder,  see  4  Dem.  "^  Condit  v.  Winslow,   106   Ind.   142. 

£36.  Under  the  New  York  code  the  represen- 

^  Lund  V.  Lund,  41  N.  H.  355.  tative  is  chargeable  for  the  indebtedness 

2  Egerton  v.   Egerton,  17  N.  J.  Eq.  of  a  firm  of  which  he  is  a  member.     95 

419;  supra,  §  431;  Pursel  v.  Pursel,  14  N.  Y.  340.    See  88  N.  C.  407. 

N.  J.  Eq.  514.  "^  Sanderson   v.   Sanderson,    20    Fla. 

*  Supra,  §  439.     See  further,  Kerr  v.  292. 

8  40N.  J.  Eq.  158;  Part  IV.,  c.  3;  §  537. 

672 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  543 

§  543.    Expenses  of  Education,   Maintenance,   Advancements, 

etc.  —  Expenses  of  education  and  maintenance  tlevolve, 
usually,  upon  trustees  under  a  will  and  guardians,  rather  than 
upon  the  fiduciary  who  administers  and  distributes  the  es- 
tate.^ An  administrator  cannot  in  general  be  credited,  in  his 
accounts,  for  board,  clothing,  or  other  necessaries  of  his  adult 
distributees  ;  ^  for  such  outlay,  if  matter  of  allowance  at  all, 
affects  only  the  method  of  paying  fully  the  share  of  an  indi- 
vidual distributee,  as  if  the  representative  advanced  him  so 
much  money.  On  a  settlement  of  administration  accounts, 
one  is  not  properly  credited  for  money  advanced  by  him  to  a 
distributee ;  but  the  amount  may  be  charged  by  him  against 
the  distributee  when  the  latter's  distributive  share  is  ascer- 
tained.^ But  statute  allowances  to  widows  and  young  chil- 
dren stand  on  their  own  peculiar  footing ;  *  and,  as  to  execu- 
tors, these  may  have  the  right  and  duty  of  applying  sums  for 
education  and  maintenance,  in  exceptional  instances,  under  a 
testator's  directions.^  Upon  equitable  principles  our  probate 
courts  may  allow  either  to  executors  or  administrators  sums 
advanced  for  an  infant  legatee's  or  distributee's  education  and 
maintenance  ;  and  such  jurisdiction,  it  is  held,  may  be  implied 
even  if  not  expressly  conferred.^ 

Charges  for  the  maintenance  or  education  of  the  decedent 
himself  are  reckoned  like  other  claims  against  an  estate ; 
and,  while  the  representative's  own  charge  in  such  connec- 
tion invites  scrutiny,  it  may,  if  proper,  be  allowed  him.'^ 


1  See  Perry  Trusts,  117,  612;  Schoul.  10  Vt.  116;    i  Har.  &  J.  227;   Simmons 
Dom.  Rel.  3d  ed.  §  238.  v.  Boyd,  49  Ga.  285. 

2  Brewster  z'.  Brewster,  8  Mass.  131;         ^  Triggs    v.    Daniel,    2    Bibb,    301; 
Trueman  v.  Tilden,  6  N.  H.  201 ;  Willis  Harris  v.  Foster,  6  Ark.  388. 

V.  Willis,  9  Ala.  330;   Sorin  v.  Olinger,         ^  Hyland    v.   Baxter,  98   N.  Y.    610. 

12  Ind.  29;    10  Sm.  &  M.  179;   8  Jones  And  see  Munden  v.  Bailey,  70  Ala.  63. 

L.  III.      Rent  of  a  family  pew,  occu-  Moneys  may  be  thus  expended  in  good 

pied  by  the  family  after  the  testator's  faith  and  properly  for  infant  legatees,  or 

death,  follows  this  rule.     Scott  v.  Mon-  distributees    who    have     no    guardian, 

ell,    I    Redf.   431.      And   see    State  v.  Rogers  t/.  Traphagen,  42  N.  J.  liq.  421; 

Donegan,  83  Mo.  374.  39  N.  J.  Eq.  258;    20  Fla.  262. 

3  Dickie  v.  Dickie,  80  Ala.  57;   Fitz-         '  Malony's  Appeal,  11   S.  &  R.  204; 
gerald's  Estate,  57  Wis.  508.  Wall's  Appeal,  38  Penn.  St,  464.     And 

*  Supra,  §  451;    Mead  v.    Byington,  see  4  Redf.  380. 

673 


§   544  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII, 

§  544.  Allowance  of  Counsel  Fees,  Costs,  etc. —  Executors 
or  administrators  who  ask  legal  advice,  employ  counsel,  or 
incur  costs  in  litigation  on  behalf  of  the  estate,  may  claim 
reasonable  allowance  for  the  same  in  their  accounts,  such 
employment  being  reasonable  and  proper.^  It  is  the  duty  of 
a  representative  to  defend  the  estate  against  claims  which  he 
honestly,  or  upon  reasonable  grounds,  believes  to  be  unjust ; 
and  these  expenses  should  be  reimbursed,  even  though  the 
suit  be  lost ;  ^  and  certainly,  if  the  estate  benefit  by  it.  The 
principles  are  those  discussed  elsewhere  ;  good  faith  and  ordi- 
nary prudence  on  his  part,  in  protecting  the  interests  he  rep- 
resents, are  all  that  may  be  exacted  of  him;^  and,  in  employing 
counsel,  he  incurs  a  personal  liability,  his  lien  on  the  assets 
serving  for  his  own  indemnity.^  With  such  reservations,  the 
expenses  of  a  litigation  bond  fide  incurred,  whether  for  pro- 
curing the  probate  of  a  will  or  one's  appointment,  or  in  the 
due  course  of  administration,  as  in  the  pursuit  of  assets,  or  in 
resistance  to  creditors,  or  in  asking  instructions  of  the  court, 
as  also  by  way  of  accounting  in  compliance  with  the  law  and 
the  terms  of  his  bond,  are  allowed,  with  considerable  indul- 
gence, out  of  the  assets,  that  a  faithful  representative  may  not 
personally    suffer.^     These    considerations    apply   to   taxing 

1  Wms   Exrs.    i860;    Macnamara  w.  ^•j2  Ala.  227;   6Greenl.  48;   6  Allen, 

Jones,  Dick.  587;    24  W.  R.  979.     The  494;    19  N.  H.  205;   35  Miss.  540;   31 

fact  that  the  administrator   was  insane  Penn.  St.  311;   28Vt.  765;   4Redf.  302. 

when  he  paid  does  not  deprive  him  of  ^  Supra,  §  314. 

such  credit.     95   N.   C.    265.     Reason-  *  Supra,   §    256;   McHardy  v.  Mc- 

able  compensation  for  services  and  ex-  Hardy,  7  Fla.  301. 

penses  in  rectifying  mistakes  made  with-  ^  Wms.  Exrs.  376,594,  i860,  1894; 

out  the  representative's  fault  is  allowed.  U.  S.  Digest,   ist  series,  Executors  and 

Bartlett  ji.  Fitz,  59  N.  H.  502.     Or  even  Administrators,    3908-3935;     cases   su- 

'\w.\\\\g's.'aon  bond  fide  upon  a  doubtful  pra;  33   Ala.  291;    8   Gill,    285.     One 

claim  and  unsuccessfully.     Polhemus  v.  may  specially  limit  his  liability  by  a  con- 

Middleton,  37  N.  J.  Eq.  240.  tract  that  the  attorney  shall  look  to  the 

Some  States,  in  practice,  are  opposed  estate  alone  for  payment.     58  Md.  58. 

to  giving  credit  for  attorney's  fees  paid  by  As  to  the  liability  of  executors    or  ad- 

the  fiduciary  to  a  firm  of  which  he  is  a  ministrators  for  costs,  upon  a  non-suit 

member.     93  Ind.  121.     But   in    other  or   a   verdict    against    them,  see  Wms. 

States  a  fiduciary  who  is  also  a  profes-  Exrs.  1894,  1897,  1980.     Costs  in  suits 

sional  lawyer,  is  entitled  to   make    the  asking  directions  under  a  will,  etc.,  and 

usual  professional  charges,  provided  his  in  such  other  amicable  litigation  as  may 

whole  recompense  be  fair  and  reason-  be  justifiable   under  the  particular  cir- 

ble.    70  Ala.  607.  cumstances,  are  usually  allowed,  at  the 

674 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  544 

court  costs,  or  to  the  fees  of  attorneys  and  counsel  in  or  out 
of  court,^  and  to  proceedings  on  appeal  as  well  as  in  the  orig- 
inal jurisdiction.^ 

But  bills  for  legal  services,  counsel  fees,  and  the  costs  of 
litigation,  are  not  to  be  allowed  to  the  personal  representa- 
tive where  the  expense  was  not  incurred  in  good  faith,  as 
reasonably  calculated  to  promote  the  benefit  of  the  estate.^ 
Nor  where,  in  instituting  litigation  or  suffering  it  to  proceed, 
or  in  managing  the  cause  on  his  own  part,  the  representative 
was  culpably  remiss  in  the  performance  of  the  duty  confided 
to  him.*  Nor  where  the  expense  was  incurred  by  him,  against 
the  interests  of  the  estate,  and  for  his  own  express  benefit ;  ^ 
or  because  of  his  misconduct.^     Nor  for  services  in  connec- 


court's  discretion,  out  of  the  estate. 
Wms.  Exrs.  376,  2034,  2038;  L.  R.  i 
P.  &D.  655;  I  Paige,  214;  31N.  J.  Eq. 
234.  And  to  such  awards  probate  and 
equity  courts  incline  in  their  own  formal 
practice.  In  probate  causes,  in  some 
States,  however  (probate  proceedings 
being  conducted  somewhat  informally), 
it  is  not  customary  to  allow  costs  to 
either  party.  1 2  Allen,  1 7 ;  7  Gray,  472. 
And  see  4  Redf.  i.  Local  practice 
usually  determines  the  question  of  costs, 
independently  of  external  jurisdictions. 
Contingent  fees,  or  fees  beyond  those 
taxable,  may  be  consistent  with  local 
practice.  2  H.  &  M.  9;  29  Miss.  72. 
But  legal  expenses,  and  the  reasonable 
fees  of  attorneys  or  counsel  employed 
in  good  faith,  are  thus  allowable;  not 
money  paid  out  by  way  of  a  compro- 
mise. 33  Ala.  291.  Each  case  must 
stand  on  its  own  merits  as  to  allowing  the 
executor  or  administrator  for  costs  and 
fees  in  litigation.  9  Ala.  734.  Allow- 
ances of  this  character  are  found  regu- 
lated by  local  statute.  Seman  v.  White- 
head, 78  N.  Y.  306.  In  some  cases 
the  counsel  services  were  not  really 
rendered  to  the  representative  but 
upon  the  stipulation  of  the  widow 
and  sole  devisee.  Whether  the  repre- 
sentative can  agree  to  give  an  attor- 
ney half  of  what  he  may  recover  by 
getting  certain  fraudulent   transfers  by 


the  decedent  set  aside,  see  Piatt  v. 
Piatt,  105  N.  Y.  488.  Costs  made  by 
claimants  in  successfully  prosecuting 
claims  against  an  estate  are  not  expenses 
of  administration.  Taylor  v.  Wright, 
93  Ind.  121. 

1  6  Thomp.  &  C.  21 1 ;    30  Ark.  520. 

2  Hazard  v.  Engs,  14  R.  I.  5. 

3  O'Neill  V.  O'Donnell,  9  Ala.  734. 

*  Green  v.  Fagan,  15  Ala.  335.  As 
where  the  repiesentative  defended  a  suit 
properly  brought  against  him  by  reason 
of  his  delinquency.  Lilly  v.  Griffin,  71 
Ga.  535. 

^  Mims  V.  Mims,  39  Ala.  716; 
Stephens'  Appeal,  56  Penn.  St.  409; 
Cameron  v.  Cameron,  15  Wis.  i.  As 
where  an  executor  who  was  also  a  lega- 
tee contested  against  other  legatees  as 
to  his  own  legacy.  65  Cal.  287.  Where 
the  same  litigation  involved  points  partly 
for  the  executor's  personal  benefit  and 
partly  for  the  benefit  of  the  estate,  the 
costs  and  charges  should  be  fairly  ap- 
portioned. Clement's  Appeal,  49  Conn. 
519.  And  see  Kingsland  v.  Scudder, 
36  N.  J.  Eq.  284.  An  administrator 
may  have  to  pay  all  costs  arising  on 
just  exceptions  to  his  account,  but  not 
the  costs  of  settling  the  estate.    58  Iowa, 

36. 

637  Ala.  683;  109  Mass.  541 ;  81 
Penn.  St.  263. 


675 


§  545  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

tion  with  matters  which  lie  outside  the  range  of  his  offi- 
cial duty.i  Nor  where,  imprudently  or  dishonestly,  he  has 
incurred  needless  expenditure  in  the  execution  of  his  trust ; 
employing  legal  services  where  none  were  required,  or  more 
counsel  than  was  reasonably  needful  and  proper,  or  settling 
extravagant  fee  bills  without  a  prudent  scrutiny.^  Nor  in 
general  where  such  services  were  unnecessary.  Costs  or 
counsel  fees  are  not  usually  to  be  credited  on  the  repre- 
sentative's accounts,  unless  he  has  paid  them.^  And  where 
an  attorney  performs  services  properly  belonging  to  the  repre- 
sentative himself,  compensation  for  both  of  them  cannot 
reasonably  be  allowed.^  All  such  counsel  services  are  a  per- 
sonal charge  to  the  representative  in  the  first  instance  accord- 
ing to  American  practice ;  and  his  effort  is  to  have  them 
allowed  him  on  his  account.^ 

§  545-  Compensation  of  Executors  and  Administrators.  —  As 
to  compensation,  the  long-established  English  rule  of  chan- 
cery has  been,  that  a  fiduciary  office  is  honorary  and  gratui- 
tous. Hence,  the  executor  or  administrator  must  serve 
without  recompense  for  his  own  services,  being  strictly  for- 
bidden to  make  profit  out  of  his  office.® 

^  Lusk  V.  Anderson,  i  Met.  426;    2  ministering,  not   unfrequently,   for  the 

Bibb,  609.  peculiar  profit  of  those  whom  he  must 

2  Crowder  v.  Shackelford,  35  Miss,  trust  to  lead  him,  unless  he  can  keep 
321;  Liddell  v.  McVickar,  11  N.  J.  L.  the  business  out  of  the  courts  as  non- 
44.     And  see  Smyley  v.  Reese,  53  Ala.  contentious. 

89;   5  Dem.  244.  The    English    chancery    rule,    as    to 

3  Thacher  v.  Dunham,  5  Gray,  26;  trustees,  too,  has  been  very  strict,  that 
40  Ala.  391,  421.  As  to  allowing  them  trustees  cannot  derive  direct  or  indirect 
directly  to  the  attorney,  see  12  W.  Va.  profit  from  the  estate  they  represent; 
427.  that   they    cannot   be   factors,    experts, 

*4    Dem.    333.      See    Kingsland    v.  brokers.receivers,  nor  even  make  charges 

Scudder,  36  N.  J.  Eq.  284.  against  the  estate  represented  for  pro- 

*  3  Dem.  I.  fessional    services    rendered,    notwith- 

^  Perry  Trusts,  §§  432,  904;    Robin-  standing    the    professional    or    expert 

son  I/.  Pett,  3  P.  Wms.  132;  Wms.  Exrs.  knowledge  they  may  have  brought  to 

1853.     A  consequence  not  unnatural  is,  the  discharge  of  the  trust.    Perry  Trusts, 

that  the   labors    of   the    office  with    its  §§132,904.    Even  though  trustees  carry 

responsibilities   become  shifted  unduly,  on   a  trade   under   the   testator's  direc- 

where  the  estate  is  a  large  and  onerous  tion,  they  can  charge  nothing  for  their 

one,  upon  solicitors,  proctors,  counsel,  services,   notwithstanding    the    perilous 

and  officers   of  the  court;    so  that  the  risks  they  incur.     Perry  Trusts,  §  906. 

actual  representative   finds  himself  ad-  But  it  has  been  found  necessary  to 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  545 

American  policy,  on  the  other  hand,  binds  the  executor  or 
administrator  closely  to  the  court  in  his  official  dealings  ;  but 
renders  the  judicial  proceedings  as  inexpensive  as  possible, 
and  remunerates  him  for  faithful  services  ;  holding  him  bound, 
in  consequence,  to  fulfil  his  trust  with  a  just  sense  of  the 
legal  obligations  which  it  imposes.  It  discourages  the  idea 
of  recompensing  deputies  liberally  for  duties  which  the  repre- 
sentative may  himself  capably  render.  And,  compensation 
being  thus  allowed,  the  legal  liability  is  greater ;  and  more 
stress  is  laid  upon  personal  qualifications  for  the  trust. 

Compensation  being  now  allowed  to  the  personal  represen- 
tative in,  perhaps,  every  State  in  this  Union,  upon  maxims  of 
sound  policy  which  our  most  eminent  equity  jurists  have 
inculcated,^  it  becomes  matter  of  local  custom  or  enactment 
what  compensation  shall  be  reasonable.  In  many  States,  a 
commission  on  the  amounts  received  and  paid  out  is  allowed  ; 
an  excellent  basis  for  such  a  computation,  and,  perhaps, 
universally  approved  in  this  country,  wherever  a  fiduciary's 
recompense  is  passed  upon.^    But  as  such  a  rule  meets  routine 


allow  compensation  in  British  colonies 
in  order  to  induce  suitable  men  to  ac- 
cept the  office;  and  probably  with  the 
modern  development  of  wealth  invested 
in  personal  securities,  other  exceptions 
will  be  coriceded  by  the  English  Parlia- 
ment. See  as  to  trustees,  Perry  Trusts, 
§  904;  and  as  to  guardians,  Schoul. 
Dom.  Rel.  §  375. 

1  "  The  policy  of  the  law  ought  to  be 
such  as  to  induce  honorable  men,  with- 
out a  sacrifice  of  their  private  interests, 
to  accept  the  office."  2  Story  Eq.  Jur.  § 
1268  n.  And  see  Boyd  v.  Hawkins,  2 
Dev.  Eq.  334;  Perry  Trusts,  §  917.  But 
see  Chancellor  Kent  in  i  Johns.  Ch. 
37»  534-  A'so  the  Delaware  rule  as  ap- 
plied in  State  v.  Piatt,  4  Harring.  154. 
American  policy  is  in  favor  of  granting 
remuneration.  Perry  Trusts,  §  917; 
Schoul.  Dom.  Rel.  §  375;  Barney  v. 
Saunders,  16  How.  (U.S.)  542;  Clark  z/. 
Piatt,  30  Conn.  282;  Wms.  Exrs.  1853, 
Perkins's  note.  And  it  may  also  be  said 
that  while  executors  are  selected  by  a 


decedent  as  matter  of  personal  trust  or 
confidence  to  administer,  an  administra- 
tor is  appointed  to  perform  duties  with- 
out any  such  essential  relation  to  the 
estate  represented. 

2  The  allowances  made  for  the  com- 
pensation of  executors  and  other  fidu- 
ciary officers  varies  in  different  States; 
but  the  local  statutes  on  the  subject  are 
digested  in  Perry  Trusts,  §  918,  and 
notes.  In  the  larger  number  of  .States 
the  compensation  is  by  way  of  a  com- 
mission, which  may  vary,  according  to 
circumstances,  from  one  to  ten  per  cent., 
which  last  is  usually  the  maximum. 
The  New  York  rule  established  is  iw^ 
per  cent,  on  sums  not  exceeding  one 
thousand  dollars;  half  that  amount 
upon  all  sums  between  that  and  five 
thousand  dollars;  and  one  per  cent,  on 
sums  exceeding  that  amount.  3  Johns. 
Ch.  43.  This  rule  practically  obtains 
in  other  States  as  fixing  on  the  whole  a 
fair  average  rate.  One-half  the  com- 
mission is  for  sums  received,  and  the 


^77 


§  545 


EXECUTORS    AND   ADMINISTRATORS.         [PART  VII. 


rather  than  extraordinary  services,  our  later  cases  appear 
inclined  to  allow  to  an  executor  or  administrator,  besides  the 
usual  commission,  a  moderate  charge  for  professional  and 
personal  services  specially  rendered  by  him,  where  such  skill 
was  needed  and  bestowed,  and  where  he  was  capable  of 
bestowing  it,^  and  such  is  the  positive  rule  of  some  States. 
Each  local  rule  is  based  largely  upon  local  statutes.  Such 
services  are  sometimes  estimated  by  the  court  in  fixing 
the  commission  ;  but  in  most  New  England  States  where 
the  court  is  empowered  to  allow  what  is  reasonable,  specific 
sums  may  be  charged  for  special  services  in  addition  to 
the  usual  commission,  or  in  lieu  thereof,  provided  the  whole 
does  not  exceed  a  fair  rate  of  compensation ;  and  the  court 


other  half  for  sums  disbursed.  The 
New  Jersey  statute  fixes  a  higher  rate 
of  commissions.  Perry  Trusts,  §  918, 
note.  Three  and  a  half  commission 
upon  an  estate  of  nearly  $300,000  was 
not  thought  excessive  where  the  execu- 
tors had  to  carry  on  litigation,  and  sell 
real  estate  under  a  power.  39  N.  J.  Eq. 
270.  But  in  an  estate  of  $500,000, 
whose  settlement  gave  very  little  trouble, 
two  per  cent,  was  thought  enough. 
37  N.  J.  Eq.  578.  And  so  is  it  in 
various  other  States.  Perry,  ib.  See  28 
La.  Ann.  638;  11  Phila.  (Pa.)  26,  39, 
92;  2  Redf.  244,  255,  312,  465.  Com- 
missions on  credits  or  a  set-off,  where  a 
claim  is  adjusted,  are  not  favored;  that 
should  rather  be  computed  on  the  bal- 
ance; and  commissions  on  a  debt  owing 
by  or  to  the  representative  himself  should 
be  disallowed. 
Tex.  109. 

Double  and  contemporaneous  com- 
missions on  a  constructive  change  of 
capacity  aie  in  New  York  treated  with 
disfavor.  Johnson  v.  Lawrence,  95  N.  Y. 
154.  But  executors  taking  a  fund  as 
trustees  are  entitled  to  commissions  in 
each  consecutive  capacity.  39  N.  J.  Eq. 
493;  42  N.  J.  Eq.  361.  The  executor 
or  administrator  may  claim  commissions, 
even  though  the  property  received  re- 
mains in  his  hands  in  the  same  state  as 
when  he  received  it.    3  Dem.  289.    Full 

678 


commissions  in  good  money  cannot  be 
charged  upon  collections  made  in  de- 
preciated currency.  75  Ala.  162.  As 
to  commissions  on  real  estate  generally, 
see  5  Dem.  169;  70  Cal.  69.  As  to 
commissions  on  real  estate  sold  under 
incumbrances,  see  42 -Ohio  St.  53.  Or 
sold  under  a  power  to  convert  into  per- 
sonalty. 38N.  J.  Eq.405.  Or  where  pro- 
ceedings against  the  administrator  were 
needful.  70  Ala.  575.  In  apportioning 
commissions  among  co-executors  or  co- 
administrators, the  quantum  and  value 
of  services  of  each  may  be  considered ; 
but  usually  these  commissions  are  di- 
vided equally.  40  N.  J.  Eq.  517;  4 
Dem.  463.  As  to  fixing  the  statute  rate 
of  compensation  on  income,  see  2  Dem. 
257.  An  executor  cannot  usually  claim 
compensation  or  commissions  for  turning 
85  Penn.  St.  398;  38  over  specific  bequests  to  the  persons 
entitled  to  them,     i  Dem.  296. 

1  Wendell  v.  Wendell,  19  N.  H.  210; 
II  Phila.  95.  In  New  Hampshire  and 
Maine,  the  court  gives  a  per  diem  com- 
pensation for  time,  travel,  labor,  etc. 
Perry  Trusts,  §  918.  Where  an  execu- 
tor gave  much  time  to  managing  and 
carrying  on  farms  belonging  to  the  es- 
tate, he  was  allowed  a  reasonable  com- 
pensation for  this  service,  besides  the 
usual  commissions  as  executor.  Lent 
V.  Howard,  89  N.  Y.  169. 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  545 


may  vary  the  allowance  according  to  circumstances.^  Claims 
for  special  allowances  should,  however,  always  be  closely 
scrutinized,  as  the  representative  here  employs  himself,  so  to 
speak. ;  all  items  improper  should  be  disallowed,  and  exorbi- 
tant amounts  reduced. 

Commissions  and  compensation  may  be  forfeited  by  the 
representative's  misconduct  and  culpable  remissness  in  his 
trust.2     And,  if  one  has  been  appointed  on  a  distinct  under- 


1  Longley  v.  Hall,  ii  Pick.  120; 
Emerson,  Appellant,  32  Me.  159;  Roach 
V.  Jelks,  40  Miss.  754;  Evarts  v.  Nason, 
II  Vt.  122;  Clark  v.  Piatt,  30  Conn. 
282. 

A  gross  sum  should  not  be  charged 
generally  for  services,  without  some 
specification  of  particulars.  41  Ala.  267. 
But  a  gross  sum  is  permitted  to  be 
charged  in  some  States.  Charging  more 
than  the  statutory  remuneration,  for  ser- 
vices to  heirs,  etc.,  is  not  permitted. 
59  Mo.  585;  6  Rich.  Eq.  2.  As  to  the 
Illinois  rule,  which  treats  claims  for 
professional  service  with  disfavor,  see 
Hough  V.  Harvey,  71  111.  72. 

Where  a  will  directs  a  six  per  cent, 
commission  allowed  upon  "  all  moneys 
collected,"  this  means  "  collections " 
merely,  and  does  not  embrace  the  entire 
estate.       Ireland    v.   Corse,    67   N.   Y. 

343- 

Real  estate  may  be  properly  con- 
trolled by  the  representative  and  a  com- 
mission allowed.  Eshleman's  Appeal, 
74  Penn.  St.  42.  For  the  rule  of  com- 
missions, where  an  incumbrance  is  dis- 
charged and  applied  to  a  claim,  see  36 
Tex.  116;  30  Ark.  520.  And  see,  as  to 
selling  lands  under  a  power,  24  Hun, 
109;  Twaddell's  Appeal,  81  *  Penn.  St. 
221.  On  a  sale  of  real  estate,  a  com- 
mission exceeding  two  and  one-half  per 
cent,  is  rarely  allowable.  1 1  Phila.  53. 
Commissions  based  on  a  constructive 
possession  of  assets,  and  not  actual,  are 
not  favored.  51  Miss.  211;  30  Ark. 
520;  §  545,  note. 

As  to  an  administrator  de  bonis  non 
and  his  commissions,  see  Myrick  Prob. 
163.      Special  administrators   are    not 


usually  entitled  to  full  commissions.  41 
Ala.  267;  67  Mo.  415.  Co-executors  or 
co-administrators  are,  as  a  rule,  entitled 
to  share  the  commissions  equally.  4 
Abb.  App.  Dec.  578;  Squier  v.  Squier, 
30  N.  J.  Eq.  627.  But  they  may  ar- 
range with  one  another  as  to  duties  and 
compensation.  See  4  Md.  Ch.  368;  8 
Md.  548;  §  545,  note.  A  public  ad- 
ministrator who  seeks  an  appointment, 
knowing  that  by  law  he  is  not  entitled, 
can  claim  no  recompense.    27  La.  Ann. 

574- 

As  to  executors  who  are  testamentary 
trustees,  and  their  commissions,  see  4 
Redf  34;    II  Phila.  80. 

Concerning  the  time  when  commis- 
sions should  be  computed,  see  Drake  v. 
Drake,  82  N.  C.  443.  One  should  not 
appropriate  his  commissions  until  they 
have  been  allowed;  but  he  may  retain 
funds  to  meet  them.  Wheelwright  v. 
Wheelwright,  2  Redf.  501. 

2  Brown  v.  McCall,  3  Hill,  335 ;  Hap- 
good  V.  Jennison,  2  Vt.  294;  3  Green, 
51;  Clauser's  Estate,  84  Penn.  St.  51. 
Eppinger  v.  Canepa,  20  Fla.  262;  36 
La.  Ann.  420.  Neglect  to  render  ac- 
counts until  citation  does  not  necessarily 
forfeit  commissions,  though  it  is  an  un- 
favorable circumstance.  Barcalow,  Re, 
29  N.  J.  Eq.  282.  See  10  .S.  C.  208;  4 
Redf.  34;  94  N.  C.  720.  One  may  for- 
feit commissions  and  yet  be  entitled  to 
a  reasonable  recompense.  3  Green,  51. 
One  who  discharges  his  duties  faithfully 
and  with  advantage  to  the  estate,  does 
not  forfeit  commissions  for  keeping  on 
hand  larger  amounts  than  he  ought; 
though  this  might  make  him  chargeable 
for  interest  on  the  excess  thus  lying  idle. 


679 


§   54^  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

Standing  with  those  interested  to  serve  as  executor  or  admin- 
istrator without  recompense,  or  at  a  stated  compensation,  he 
must  abide  by  his  engagement.^ 

For  illegal  allowances  voluntarily  made,  the  executor  or 
administrator  is  responsible  to  the  estate.^ 

§  546.  General  Matters  as  to  Charges  and  Allowances,  Be- 
quest in  Lieu,  etc.  —  A  few  points  may  here  be  added.  An 
administration  account,  rendered  in  the  probate  court  for 
settlement,  is  said  to  be  in  the  nature  of  a  declaration  in 
a  writ ;  so  that,  unless  amended  by  order  of  court,  a  greater 
sum  than  actually  charged  cannot  be  allowed  to  the  repre- 
sentative, either  in  that  court  or  upon  appeal.^  But,  as 
to  commissions  and  interest,  the  probate  practice,  in  some 
States,  is  to  omit  such  items  when  the  accounts  are  pre- 
sented, so  as  to  allow  them  to  be  entered,  or  the  amounts 
carried  out,  upon  the  hearing  before  the  judge  of  probate.* 
In  making  up  a  final  account,  items  for  subsequent  expendi- 
ture may  be  specified  by  way  of  anticipating  payment,  and 
the  balance  struck  accordingly.^ 

A  bequest  to  an  executor  may  be  made  in  full  of  compensa- 
tion for  his  trust  ;^  but  unless  the  language  of  the  will  shows 
that  the  bequest  is  to  be  by  way  of  specific  compensation, 
this  does  not  deprive  him  of  the  right  to  charge  commissions.^ 
Nor  does  the  fact  that  an  administrator  is  also  a  distributee 
compel  him  to  treat  his  distributive  share  as  his  recompense 
for  ordinary  services.  The  right  to  retain  commission  or 
compensation  does  not  properly  accrue  until  the  account  has 

Frost  V.  Denman,  41  N.  J.  Eq.  47.   One  2  As  where  he  allows  to  his  intestate's 

may  be  entitled  to  commissions  or  com-  smviving  partner  for  personal  services 

pensation  and  yet  have  to  pay  interest,  in  the  business.     Loomis  v.  Armstrong, 

Supra,  §  538.    See  further,  42  N.  J.  Eq.  49  Mich.  521. 

337.     As  to  the  effect    of  a   statutory  ^  Pettingill  v.  Pettingill,  64  Me.  350. 

change  in  the  rule,  see  64  Md.  517.  *  Lund  v.  Lund,  41  N.  H.  355,  364. 

1  Davis,  Re,  65  Cal.  309.     It  is  imma-  ^  See  Hone  v.  Lockman,  4  Redf.  61, 

terial  that  such  promise  was  not  made  as  to  adding  items  of  receipts  and  ex- 

with  all  parties  interested.    Bate  v.  Bate,  penditures  subsequent  to  filing  the  final 

1 1  Bush,  639.    But  the  agreement  of  one  account. 

executor  to  waive  commissions  cannot  ^  See  provision  of  such  a  will  in  38 

prejudice  the  rights  of  his  co-executor.  N.  J.  Eq.  405. 

14  Phila.  290;  §  401.  '  Mason,  Re,  98  N.  Y.  527. 

680 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.   §  547 

been  submitted  and  allowed.^  But  American  practice  in  those 
days  does  not  favor  the  deprivation  of  an  executor's  fair  rights 
by  anything  the  will  itself  may  contain,  even  though  this 
executor  should  probate  the  will.  It  is  held  that  a  testator  can- 
not take  away  his  executor's  recompense  by  restrictions  thus 
attempted  ;  for,  where  there  has  been  full  and  just  administra- 
tion, even  the  court  has  no  power  to  deprive  the  fiduciary  who 
settles  the  estate  of  the  minimum  compensation  which  the 
law  gives  him.^  Our  local  statutes  sometimes  permit  execu- 
tors to  elect  between  the  commissions  fixed  by  law  and  any 
testamentary  provision  in  lieu  thereof.^ 

§  547-  Accounts  and  Allowances,  as  to  Foreign  Assets.  —  A 
foreign  executor  or  administrator  cannot  be  compelled  to 
account,  unless  he  has  brought  assets  into  the  domestic  juris- 
diction ;  nor  then,  necessarily,  as  one  answerable  to  the  local 
probate  court  and  not  rather  in  chancery,  on  general  maxims.* 
The  expenses  attending  a  sale  of  lands  in  a  foreign  jurisdic- 
tion, or  the  taxes  paid  on  such  real  estate,  are  not  properly 
allowed  upon  an  administration  account  rendered  in  the 
domestic  forum. ^ 

Where  letters  testamentary  upon  the  estate  of  a  resident  of 
some  other  State  are  granted  in  that  State  to  a  citizen  of 
Pennsylvania,  the  Pennsylvania  courts  have  refused  to  take 
any  jurisdiction  to  compel  the  settlement  of  his  accounts  or 
to  entertain  a  bill  in  equity  to  charge  him  with  assets,  before 
his  accounts  have  been  settled  in  such  other  State,  showing  a 
balance  in  his  hands.^ 

1  4  Dem.  463.  *  Kohler  v.  Knapp,  I   Bradf.  (N.  Y.) 

3  Handy  v.  Collins,  60  Md.  229.    But  241;   supra,  §§  173-180. 

no  commissions  are  allowable  on  a  debt  °  i  Root,  182;    Roberts  "'.  Roberts,  28 

due  by  the  executor  to  the  testator,  and  Miss.    152;    Jennison    7k  Hapguod,    10 

by  the  latter  specifically  bequeathed  to  Pick.  77. 

the  former.     lb.  ®  Musselman's  Appeal,  lOl  Penn.  St. 

8  I  Dem.  244,  337.  165. 

68  r 


APPENDIX. 

REMEDIES  BY  AND  AGAINST  EXECUTORS  AND 
ADMINISTRATORS. 

In  the  course  of  the  present  volume  we  have  touched  upon  all  the  usual 
remedies  to  be  pursued  by  or  against  executors  and  administrators.  As 
the  reader  has  doubtless  observed,  English  practice  favors  bringing  all  the 
assets  of  the  estate,  together  with  the  personal  representative,  into  the 
court  of  chancery ;  there  to  have  the  administration  practically  controlled 
and  directed,  unless  the  parties  interested  are  satisfied  that  their  rights 
will  be  duly  respected  by  a  settlement  out  of  court ;  ^  while,  according  to 
the  American  system,  chancery  is  seldom  resorted  to  where  the  local 
probate  jurisdiction  is  adequate,  and  the  security  chiefly  relied  upon  by 
creditors,  legatees,  and  other  interested  parties,  is  the  probate  bond,  filed 
by  the  personal  representative,  which  obliges  him  not  only  to  administer 
properly,  but  to  render  regular  accounts  in  the  probate  court  besides.^  It 
is  the  bill  in  equity  upon  which  those  interested  in  the  estate  who  distrust 
the  personal  representative,  or  seek  redress  against  his  mismanagement, 
must  chiefly  rely,  where  an  English  estate  is  administered ;  but  where  the 
estate  is  American,  a  probate  court  affords  chief  protection,  requiring,  as 
it  may,  ample  sureties  to  be  furnished  when  such  precautions  appear  desir- 
able, and,  in  all  cases  of  official  delinquency,  permitting  the  representative's 
bond  to  be  prosecuted  for  the  benefit  of  the  interested  parties.^  As  to 
remedies  of  this  nature,  little  need  be  added,  except  to  refer  the  prac- 
titioner to  general  rules  of  practice,  as  laid  down  in  all  elementary  works 
of  equity  or  common  law,  with  a  further  express  reference  to  the  codes  of 
his  own  State,  for  copious  details  in  which,  as  independent  local  courts 
expound  such  legislation,  American  jurisdictions  by  no  means  harmonize. 

But,  in  both  English  and  American  practice,  it  frequently  occurs  that 
the  personal  representative  should  sue  or  be  sued  in  a  common-law  court ; 
and  upon  this  topic  there  remains  something  to  be  said.  Here,  as 
already  suggested  to  the  reader  more  than  once,  the  fundamental  difficulty 
in  our  practice  is,  that  in  some  instances  the  representative  should  sue  or 
be  sued  in  his  official  capacity,  in  others  in  his  personal  capacity ;  while,  in 
an  intermediate  class  of  cases,  there  appears  an  option  given  for  a  suit  in 
either  capacity.*  The  essential  reason  for  this  distinction  is,  that  our  law 
of  administration  regards  the  contract  of  an  executor  or  administrator  as 
binding  himself  individually,  unless  made  under  an  express  reservation 

1  Supra,  §§  518,  521.  ^  Supra,  §§  136,  139. 

2  Supra,  §§  520,  522.  <  Supra,  §§  137,  140. 


684  APPENDIX. 

that  only  assets  shall  be  resorted  to ;  the  real  object  being  to  allow  assets 
to  be  strictly  applied  to  claims  in  a  regular  course  of  administration,  so 
that  the  personal  representative  may  not  create  liens  or  preferences  in 
favor  of  those  with  whom  he  deals.  However  commendable  this  rule,  its 
application  makes  much  difficulty  in  the  courts ;  for  an  action,  grounded 
in  a  good  cause,  may  be  thrown  out  because  of  some  misconception  in  the 
plaintiff's  mind  as  to  how  that  cause  originated,  and  in  what  capacity  the 
representative  should  be  made  a  party  to  the  suit.^  Let  us  trace  the  dis- 
tinction into  remedies  by  or  against  the  personal  representative. 

(i)  As  to  suits  by  the  executor  or  administrator.  Here  the  difficulty 
is  the  less,  because  of  a  liberal  option  which  our  law  concedes.  Where 
the  cause  of  action  originated  in  the  time  of  the  deceased,  the  representa- 
tive sues  in  the  detitiet  only,  or  in  his  representative  capacity.  But  where 
the  cause  accrues  after  the  death  of  the  testator  or  intestate,  the  executor 
or  administrator  may  sue  as  such  or  not  at  his  option ;  and,  whenever  the 
fruits  of  the  suit  must  be  assets,  he  may  sue  in  his  representative  charac- 
ter, though  the  cause  originated  in  his  own  contract.^  Even  though  he 
call  himself  "  executor"  or  "  administrator"  in  the  action,  if  it  appears  that 
the  cause  of  action  is  in  his  own  right,  the  representative  word  may  be 
stricken  out  as  surplusage  ;  ^  and  even  matters  of  substance  are  aided  after 
default  or  a  verdict  in  his  favor.* 

(2)  As  to  suits  against  the  executor  or  administrator.  It  is  here  that 
the  rigor  of  the  common-law  rule  is  more  strongly  manifested.  Where  a 
defendant  is  simply  misdescribed  as  "  executor  "  or  "  administrator,"  the 
descriptive  word  may  be  stricken  out  as  surplusage,  and  a  judgment 
rendered  against  him  individually.  But  where  he  is  sued  as  executor  or 
administrator,  and  the  whole  pleadings  show  that  conception  of  his 
liability,  when  he  should  have  been  sued  as  an  individual,  the  variance  is 
held  fatal  to  the  suit.^  For  the  judgment  follows  the  complaint ;  and  if 
the  cause  is  maintained  successfully  against  one  in  his  representative 
character,  the  debt,  damages,  and  costs  are  to  be  levied  de  bonis  dece- 
dentis.^  The  action  cannot,  strictly  speaking,  be  converted  into  one 
against  the  defendant  personally,  if  wrongly  begun ;  nor  can  counts  be 
joined  as  of  causes  originating  against  the  deceased  and  against  the  repre- 
sentative ;  but,  for  a  suit  on  the  representative's  own  contract,  the  judg- 
ment is  against  him  as  an  individual,  or  de  bonis  propriis?  The  practice 
in  some  States  appears  to  change  this  rule,  however,  so  as  to  give  greater 
freedom  in  suing  in  the  alternative,  and  adapting  the  judgment  accord- 
ingly ;  *  and  such  modifications  of  the  old  doctrine  appear  highly  desirable 
in  the  interests  of  justice. 

1  Supra,  §  396.  ®  47  N.  Y.  360 ;    Smith  v.  Chapman, 

"^  Wms.  Exrs.  1871;  supra,  §  290.  93  U.  S.  41 ;    Wms.  Exrs.  1937. 

3  Wms.  Exrs.  1872.  '  See  Wms.  Exrs.  1937-1939. 

<  lb.  ^  Wms.    Exrs.     1937,    Perkins's    n.; 

'"  See  Austin  &  Munro,  47  N.  Y.  360,  Davis  v.  Vansands,  45  Conn.  600.     But 

opinion  of  court ;  5  East,  1 50.  cf.  47  N.  Y.  360. 


APPENDIX.  68$ 

We  may  add  a  few  words  as  to  common-law  suits  against  the  executor 
or  administrator.  When  sued  in  his  representative  character,  the  defend- 
ant who  intends  to  deny  his  being  such,  should  specially  plead  ne  ungues 
executor  or  ne  ungues  administrator^  But  the  proper  plea,  where  he  has 
not  assets  as  representative,  is  plene  administraviti''  These  pleas  are 
sometimes  artificially  employed,^  but  they  are  not  necessarily  false  pleas. 
And,  as  observed  in  a  recent  case,  unless  the  executor  or  administrator 
falsely  pleads  plene  administravit ,  he  is  not  liable  to  a  judgment  beyond 
assets  in  his  hands  to  be  administered.*  A  full  and  lawful  administration 
previous  to  such  suit,  or  the  utter  want  of  assets  to  respond  to  the  demand, 
is  a  good  defence ;  and  judgment  de  bonis  decedentis  is  the  only  kind  to 
which  the  plaintiff  would  be  thus  entitled.  But,  devastavit  being  averred 
and  proved  on  the  representative's  part,  or  assets  being  shown  to  have 
existed  which  ought  to  be  applied  to  the  plaintiff's  claim  and  which  can- 
not be  found,  the  court  may  order  the  judgment  levied  out  of  the  repre- 
sentative's own  proper  goods.^ 

1  Wms.  Exrs.  1943.  an  executor  or  administrator  has  com- 

*  Wms.  Exrs.  1953.  If  he  has  assets,  mitted  a  devastavit,  there  are  two  modes 
but  not  enough,  he  pleads  plene  admin-  of  proceeding  to  render  him  Hable;  the 
istravit  praeter,  etc.  one  by  an  action  of  debt  on  the  judg- 

'^  Supra,  §  187.  ment   obtained   against    him,   and    the 

*  Smith  V.  Chapman,  93  U.  S.  41.  other  by  a  scire  facias  founded  thereon. 
5  lb.;  Wms.  Exrs.  1975,  ^9^1-   When    3  Head,  575;  Wms.  Exrs.  1984,  1987. 


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INDEX. 


A. 

ABSENTEE,  Section 

administration  as  to 109,  115,  133,  135,  154 

legacy  of 484 

distribution  as  to 503 

ACCOUNTING, 

obligation  of  representative  to  keep  accounts     ....   598  et  seq. 
creditors'  bills  ;  equity  practice  as  to  compelling  account   .  519,  520 

ecclesiastical  and  probate  jurisdiction  of  accounts  in  England  .  521 

probate  jurisdiction  of  accounts  in  the  United  States  ....  522 
citation  of  parties  interested  in  the  account ;  their  assent  to  its 

allowance 523 

form  of  administration  account 524 

authentication  and  proof  of  account  in  American  practice    .     .  525 

periodical  returns  ;  partial  accounts  and  the  final  account    .     .  526 

settlement  upon  a  final  accounting ;  distribution,  etc.      .     .     .  527 

conclusiveness  of  final  settlement  in  probate  court 528 

perpetuating  evidence  of  distribution  and  procuring  final  dis- 
charge   529 

appellate  jurisdiction  as  to  probate  accounting 530 

rendering  accounts  in  case  of  death,  resignation,  removal,  etc.  531 

accounts  by  co-executors  or  co-administrators 532 

effect  of  lapse  of  time  upon  accounts 533 

no  account  required  from  residuary  legatee  giving  bond  to  pay 

debts,  etc 534 

what  is  to  be  charged  to  representative  and  what  allowed  on 

account 535 

should  charge  with  inventory  value  as  a  basis  ;  corrections,  etc.  536 
amounts  to  be  added  ;  assets  not  inventoried  ;  profits,  income, 

premiums,  etc 537 

charging  the  representative  with  interest 538 

charges  on  account,  as  concerns  real  estate,  its  profits,  etc.      .  539 

charges  on  account ;  miscellaneous  points 540 

allowances  to  the  representative ;  disbursements,  losses,  etc.  .  541 

reasonable  expenses,  etc.,  allowed 54^ 

expenses  of  education,  maintenance,  etc 543 


688  INDEX. 

ACCOUNTI NG  —  continued.  Section 

allowance  of  counsel  fees,  costs,  etc 544 

compensation  of  executors  and  administrators 545 

general  matters  as  to  charges  and  allowances 546 

bequest  in  lieu  of  recompense 546 

accounts  and  allowances  as  to  foreign  assets 547 

ACTIONS.     See  also  Appendix. 

as  to  executor  de  son  tort  or  intermeddler 187  et  seq. 

admissions  by  representative 263 

bills  of  administration,  etc 264 

interpleader  for  instructions 265 

discovery  of  assets,  embezzlement,  etc 270,271 

modes  of  discovering  assets ;  suspected  persons    .     .     .      270,271 
actions  by  executor  or  administrator . 

suing  to  recover  assets  ;  survival  of  actions 277 

actions  founded  in  contract  obligations  survive ;  exceptions,  277,  278 
actions  founded  in  injury  to  person  or  property  died  with  the 

person 279 

later  variations  of  rule  ;  modern  statutes,  etc 279,  280 

actions  founded  in  wrongful  possession  or  detention ;  replevin, 

detinue,  etc 281,  282 

action  for  damages  in  causing  death 283 

actions  founded  in  wrong  done  to  real  estate 284 

actions  upon  covenants  real,  etc 285 

suit  on  breach  of  covenant  in  deed  or  lease 286 

action  for  disturbing  possession  ;  pew,  lease,  etc 287 

general  principle  of  suits  for  assets ;   whether  as  individual  or 

representative 288-290,  293 

principle  applied  to  torts  affecting  the  property 291 

suits  on  contracts  made  with  the  representative 292 

suits  on  promissory  note,  negotiable  instruments,  etc.    .     .     .     293 
prosecuting  suits  in  equity  with  reference  to  assets     .     .     .  295-297 

distraining  or  suing  for  rent  in  arrears 301 

actions  agaitist  decedent  or  his  representative. 

survival  of  action  founded  in  decedent's  contract  .     .     .       366-369 

or  tort 370-373 

for  rent,  damage  to  real  estate,  etc 374-376 

waste  or  devastavit  by  representative 382-385 

instances  of  devastavit,  etc 386-394 

representative,  how  sued  upon  his  own  contracts       .     .       395-397 

suing  for  funeral  expenses,  etc 398,  421-424 

actions  by  or  against  co-executors  and  co-administrators      403,  404 

administrator  with  will  annexed 407 

administrator  de  bonis  non 408-412 

actions  by  or  against  special  or  temporary  administrators,  etc.     414 
equity  suits  for  settlement,  against  successive  representatives  .     416 


INDEX.  689 

ACTIONS  —  continued.  Section 

creditors'  bills  in  equity,  etc 437 

See  Claims. 

bill  of  interpleader  for  construction  of  will,  etc 473 

levy  of  execution  on  land  of  decedent 517 

creditors'  bills;  equity  proceedings  to  compel  account    .       519,  520 
remedies  by  and  against  executors  and  administrators.  Appendix. 
See  Courts. 
ADxMINISTRATION, 

how  estates  of  the  deceased  are  settled  ;  main  objects    ...         i 

modern  theory  of  judicial  supervision I 

settlement  of  estates  testate  or  intestate 2 

executors  and  administrators  and  their  functions 2 

affects  personal  property ;  whether  real  estate  affected  ...        5 

succession  in  civil  law 6 

testacy  preferred  to  intestacy  in  civil  and  common  law  ...  7 
former  abuses  in  spiritual  courts  as  to  administration     ...         7 

jurisdiction,  English  and  American,  considered 7-14 

See  Courts. 

foreign  and  domestic  ;  questions  of  comity,  etc 15-20 

last  domicile  gives  jurisdiction 22 

locality  of  personalty  or  bona  notabilia  may  confer  jurisdic- 
tion aside  from  domicile 24-26 

questions  of  double  jurisdiction 24-26 

case  where  right  of  action  is  created  by  local  statute  ...  26 
whether  locality  of  real  estate  can  confer  jurisdiction  ...  27 
constitutional  points  ;  each  State  exercises  jurisdiction  .     .     28,  29 

letters,  etc.,  in  case  of  intestacy 90  ^/  seq. 

See  Administrators  ;  Appointment. 

letters  of,  are  credentials  of  authority 351 

revocation  of  letters  ;  new  appointment,  etc 150-167 

See  Appointment. 

foreign  and  ancillary 162  ^^  seq. 

See  Conflict  of  Laws. 
officiating  without  appointment ;   intermeddler ;  executor  de 

son  tort 184-193,  197 

See  Appointment. 
acts  done  by  a  rightful  representative  before  qualifying  .       195,  196 

the  property  to  be  administered  upon 198  ^/  seq. 

See  Assets. 

inventory  of  the  estate 229-237 

See  In'ventorv. 
general  powers,  duties,  and  liabilities  of  executors  and  adminis- 
trators as  to  personal  assets 238  et  seq. 

title  to  personal   property  devolves   upon   representative   by 
relation  from  decedent's  death 238 


690  INDEX, 

ADMINISTRATION  —  continued,  Section 

representative's    title    and    authority    during    administration 

excludes  that  of  all  others  in  interest 239 

executor  or  administrator  has  power  to  dispose  of  personal 

assets 240,  241 

executors  and  administrators  distinguished  in  this  respect  .     .  241 

but  title,  etc.,  of  executor  or  administrator  is  by  way  of  trust  .  242 

identity  of  assets  should  be  preserved ;  title  intact,  etc.       .     .  243 

no  title  taken  to  property  held  by  decedent  in  another's  right  244 

representative  does  not  succeed  to  decedent's  trusts,  etc.    .     .  245 
how  one  ceases  to  hold  assets  as  representative  so  as  to  hold 

as  individual 246 

devolution  of  title  where  representative  is  also  guardian  or 

trustee 247 

legatee  or  distributee 248 

residuary  devisee  and  legatee 249 

executor  should  administer  estate  undisposed  of,  where  partial 

intestacy 250 

right  and   duty  of  discharging   contract  liabilities,   etc.,  of 

deceased 251 

avoidance,  etc.,  of  contracts  by  deceased  illegally  made      .     .  252 
contracts  personal  to  deceased,  etc.,  distinguished  from  those 

requiring  performance        253 

personal  liability  of  representative  upon  decedent's  debts  or 

contracts 254,  255 

how  incurred;  statute  of  fraud  ;  sufficient  consideration,  etc.  .  255 
representative's  own  creation  of  debt  binds  himself;    not  the 

estate 256 

lien  on  assets  for  representative ;   not  for  creditor ;  estate  how 

answerable 257 

negotiable  notes,  etc.,  running  to  representative;   other  in- 
stances         258 

recognition  of  claim  arising  on  his  own  contract ;  limitations  258 
lien  on  assets,  how  far  existing  for  representative's  own  immu- 
nity    259 

rule  of  lien  applied  in  settling  account  of  representative  de- 
ceased, etc 260 

assets  recovered  by  representative  on  his  own  contract  enure 

to  estate 261 

estate  should  not  derive  unconscientious  advantage  ....  262 

whether  admissions  by  representative  bind  estate       ....  263 

control  of  assets  by  probate  or  equity  ;  practice    .....  264 

interpleader,  etc.,  for  instructions,  by  personal  representative  265 

representative  not  a  proper  party  to  annulling  a  marriage  .     .  266 
vesting  of  possession;   chattels  real,  etc.,  distinguished  from 

chattels  personal 267 


INDEX.  691 

ADMINISTRATION  —  continued,  S'-^'ion 

whether  representative  may  act  by  attorney 268 

collection  of  the  assets 269  et  seq. 

See  Assets. 
methods  for  discovery  and  pursuit  of  assets        ....      270,271 
collection  ;  duty  to  collect  or  pursue  ;  actions    .     .     .     .  272  f/  seq. 
See  Actions  ;  Assets. 

care,  custody,  and  management  of  assets 312  ^/  seq. 

See  Assets. 
sale,  pledge,  purchase,  etc.,  by  representative    ....  339  et  seq. 
See  Assets. 

liability  of  executor  or  administrator 365  et  seq. 

See  Action  ;  Assets. 
administration  rights  and  duties  ;  co-executors       .     .      51,  400-406 

co-administrators 4I)  5'.  404-406 

administrator  with  will  annexed 123,  407 

2L&a\\m?Xxz.\.Cix  de  bonis  non 128,  408  ^^  j^^. 

administrator  de  bonis  non  with  will  annexed 413 

temporary  and  special  administrators 414 

as  to  qualified  administration  in  general ;  rights,  duties,  etc.  415,  416 

payments  and  distribution ^ly  et  seq. 

See  Claims  ;  Distribution  ;  Legacies. 
widow's  allowances  ;  minor  children's  allowances,  etc.    .  447  ct  seq. 
rights,  powers,  etc.,  of  representative  as  to  real  estate,  213,  509-517 

See  Real  Estate. 
accounting  of  executor  or  administrator,  and  allowances    518  ^/  seq. 
See  Accounting. 
ADMINISTRATORS, 

defined 2 

See  also  Administration. 

original  and  general ;  how  appointed 90 

appointment  granted  wherever  there  is  no  executor    ....       90 

origin  of  spiritual  jurisdiction  in  case  of  intestacy 90 

essentials  of  a  probate  jurisdiction  to  appoint 90-96 

persons  to  whom  general  administration  is  granted     .     .     97  et  seq. 
See  Appointment. 

appointment  of  husband  of  deceased  wife 98 

widow  of  deceased  husband 99,  100 

next  of  kin loi-iii 

nomination  of  third  person  to  administer 113 

appointment  of  creditor,  stranger,  etc 115 

public  administrator  or  other  official  in  certain  cases       .     116,  1 17, 

414,  504,  532 

letters  of  administration 119 

when  administration  may  be  dispensed  with 1 20 

administrator  with  will  annexed,  when  and  how  appointed    122-127 


692  INDEX, 

ADMINISTRATORS  —f^w/'m?^^^,  Section 

administrator  de  bottts  non,  when  and  how  appointed       .     1 28-131, 

232,  237 

administration  during  minority  {durante  minore  CBtate)  132,  135,  232 

during  absence  {durante  absentia)     ....       133,  135,  232 

pendente  lite 134,  135 

special  administration 135,  414,  532 

bonds  of  administrators 136-149 

See  Bonds. 

foreign  and  ancillary 162  et  seq. 

See  Conflict  of  Laws. 

ADMISSION, 

by  representative  whether  binding 263 

ADVANCEMENT, 

by  representative  to  creditors 443 

to  children,  how  reckoned  in  distribution       ....  499,  500,  543 

AGENT, 

responsibiHty  of  representative  for  acts  of 268,321 

ALIEN, 

as  executor 32,  33 

ALLOWANCES.    See  Accounting     .    .     228,  446a,  515  a,  535  ^^  j^^. 

ANCILLARY, 

administration 42,  162  ^/  seq. 

See  Conflict  of  Laws. 

ANNUITY 479 

APPEAL.    See  Actions,  Courts 11,  150,  151 

APPOINTMENT, 
of  executors. 

designated  under  will ;  trust  absolute  or  qualified 31 

who  are   capable   of   serving;    rule  as   to   married  women, 

infants,  corporations,  etc 32 

rule  as  to  criminals,  dissolute  persons,  insolvents,  etc.     ...       33 

miscellaneous  disabilities  for  the  ofifice 34 

express  appointment  by  testament 35 

constructive  appointment  by  designating  functions ;  executor- 
ship according  to  the  tenor 36,  37 

mere  designation  of  trustees,  legatees,  etc.,  insufficient  ...       'ij 

identifying  the  executor 38 

suggested  executor,  adviser,  etc 39 

conditional  appointment ;  substitution 40 

co-executors       4° 

testator's  delegation  of  the  power  to  name 41 

limited  or  conditional  executorship  for  different  countries,  etc.       42 
whether  executorship    passes   to   executor's   representatives ; 
executor  of  executor,  etc 43 


INDEX.  693 

APPOINTMENT  — ^^«^/«//<'rt',  *  Section 

acceptance  and  refusal  of  the  executorship ;  citation  of  person 

named 44 

death  equivalent  to  a  renunciation 45 

refusal  of  record  ;  constructive  refusal  or  acceptance  ...      46, 47 

right  to  renounce  not  to  be  exercised  corruptly,  etc 48 

whether  executor  renouncing  may  exercise  a  power     ....  49 

retraction  after  renunciation  ;  subsequent  appointment    ...  50 

renunciation  where  several  executors  are  named 51 

how  appointed  by  the  court ;  letters  testamentary 52 

probate  of  will 53 

See  Probate. 
of  original  and  general  administrators. 

jurisdiction  to  appoint  wherever  there  is  no  executor  ....  90 

intestacy  fundamental  to  the  grant  of  general  administration   .  91 

death,  and  domicile  or  local  assets 91 

presumption  favors  jurisdiction  in  granting;  but  fundamental 

facts  must  exist 92 

value  or  kind  of  estate,  whether  fundamental 93 

time  within  which  original  administration  must  be  applied  for  94 
no  original   and  general  administration  granted  while  other 

letters  are  in  full  force  ;  double  jurisdiction,  etc 95 

judicial  inquiry  into  the  facts  essential 96 

persons  to  whom  general  administration  is  granted     ....  97 
husband's  right  to  administer  upon  estate  of  deceased  wife      .  98 
widow's   right   to   administer  upon   estate   of  deceased   hus- 
band        99, 100 

right  of  next  of  kin  to  administer ;  consanguinity loi 

who  are   next  of  kin;    how  to  ascertain  preference  among 

kindred loi,  102 

preferences  among  kindred  of  the  same  degree,  etc 103 

leading  considerations  affecting  the  choice  among  those  equally 

entitled 104 

suitableness  for  appointment,  etc 104 

suitableness  as  between  males  and  females,  younger  and  older, 

etc 105 

suitableness  as  concerns  married  women ;    husband's  rights, 

etc 106 

suitableness    as   concerns  insane   persons ;    infants ;    corpora- 
tions, etc 107 

illegitimate  children  and  their  right  to  administer 108 

whether  non-residence  disqualifies 109 

other  considerations  determining  the  choice  of  administrator  .  no 

statute  order  among  next  of  kin  stated 1 1 1 

renunciation  or  non-appearance  of  those  entitled  by  preference  112 

citation  of  those  entitled 112 


694  INDEX. 

APPOINTMENT  —  continued:  Section 
nomination  of  third  person  by  the  person  entitled  to  admin- 
ister  113 

unsuitableness  of  judge  of  probate,  etc.,  for  the  appointment  .     1 14 
right  of  creditor  or  stranger  to  be  appointed  in  default  of 

kindred,  etc 115 

public   administrator,  or  other   official,   appointed  in  certain 

cases 116,  117 

method  and  form  of  granting  letters  of  administration   .     .     .     118 
administrator  as  such  must  be  appointed ;  credentials  of  au- 
thority  119 

in  what  cases  administration  may  be  dispensed  with  ....     120 
of  administrators  not  original  atid  general. 

administration  with  will  annexed    {cutn  testamento  annexd)  ; 

when  granted,  and  how 122 

functions  of  the  office 123 

to  whom  granted  ;  residuary  legatee 124 

appointment  of  next  of  kin 125 

surviving  spouse's  right  considered 126 

executor's  rights 127 

of  personalty  not  already  administered ;  de  bonis  non ;  when 

granted 128 

to  whom  committed *   ....     129 

miscellaneous  points 131 

temporary  administration ;    during  minority  (durante  minore 

estate) 132,  135 

during  absence  (durante  absentia) 133,  135 

pendente  lite 134,  135 

special  administration,  for  limited  and  special  purposes  .      135,  153 

attorney  for  absent  appointee,  etc 135 

bonds  of  executors  and  administrators 1^6  et  seq,,  l^'^ 

See  Bonds. 
revocation  of  letters ;  new  appointment,  etc. 

appeal  from  decree  of  probate  court;  mandamus,  etc.     .     .  150, 151 

revocation  by  proceedings  in  the  probate  court 152 

grounds  upon  which  revocation  is  proper 153 

removal  of  executor  or  administrator 154 

procedure  in  case   of  revocation  of  appointment  or  removal 

from  office 155 

resignation  of  executor  or  administrator 156 

jurisdiction  in  general,  as  to  revocation,  removal,  and  accept- 
ing a  resignation 157 

natural  termination  of  executor's  or  administrator's  authority ; 

death;  final  settlement,  etc 158 

delegation  of   authority   does   not  relieve,   but   supersedure 
does 156 


INDEX.  695 

APPOINTMENT  —  confim/ed.  Section 

the  effect  of  probate  decrees 160 

the  effect  of  an  appeal  from  probate 161 

foreign  and  ancillary  appoint/ncnts. 

this  subject  considered  at  length 162  et  seq. 

letters  testamentary,  or  of  administration,  have  no  extra-terri- 
torial force 164 

foreign  and  domestic  probate,  and  letters  testamentary,  169-171,  173 
foreign  and  domestic  administration     .......      172,  173 

See  Conflict  of  Laws. 
officiating  without  an  appointment. 

executor  </i?  j^w /<7r/ at  common  law  defined 184 

various  circumstances  under  which  one  may  act  without  having 

been  qualified 185 

wrongful  and  injurious  dealings  with  a  dead  person's  estate ; 

executor  de  son  tort 186 

executorship  ^1?  j(?« /(?r/,'  legal  consequences 187 

effect  of  wrongful  and  injurious  dealings,  aside  from  the  theory 

of  executorship  de  son  tort 188 

modern  statutes  restrict  the  liability  of  intruder  to  creditors 

and  strangers      .     , 189 

liability  of  intruder  upon   estate  to  the  rightful   executor  or 

administrator 190 

intermeddling  with  lands  of  the  deceased 191 

liability  of  one  who  administers  under  void  letters,  etc.      .     .     192 
beneficial  dealings  with  a  dead  person's  estate  by  one  not  ap- 
pointed       193 

acts  done  by  a  rightful  executor  before  qualifying 194 

acts  done  by  a  rightful  administrator  before  qualifying    .     .     .     195 
whether  a  suitable  representative  who  has  intermeddled  can 

be  compelled  to  take  out  letters 196 

intermeddling  by  a  third  person  after  the  grant  of  letters  tes- 
tamentary or  of  administration 197 

appointment  of  trustee  under  a  will 472 

See  Trustees. 

notice  of  appointment,  under  statute 418-420 

See  Claims. 

APPORTIONIVIENT 216,  301 

APPRAISERS.     See  Inventory. 
ARBITRATION, 

by  representative 298 

of  claims 373,  386,  387 

ASSESSMENTS, 

'   whether  payable  by  representative 318 

See  Tax. 


696  INDEX. 

ASSETS,  S"''°" 

assets  classified. 

what  comprise  assets  of  a  deceased  person's  estate ;  personal 

contrasted  with  real  assets 90,  198 

personal  property  of  the  decedent  vests  in  executor  or  admin- 
istrator   199 

enumeration  of  personal  assets ;  choses  in  action  as  well  as 

choseg  in  possession 200 

contingent  and  executory  interests 201 

stock;   public  and  corporation  securities,  life-insurance  poli- 
cies    202 

personal  property  taken  or  given  in  security 203 

to  constitute  assets,  title  must  have  stood  in  decedent  at  his 

death 204 

personal  property  of  another  among  goods  of  deceased  ;  iden- 
tification      205 

personal  property  of  decedent  left  in  another's  possession  is 

assets 206 

personal  property  constitutes  assets  notwithstanding  ultimate 

title  of  legatee's  heirs,  etc 207 

debt  due  from   representative  or  legatee,  etc.,  to   decedent, 

constitutes  assets 208 

personal   assets  coming  to  knowledge  but  not  possession  of 

the  representative 209 

personal  assets  or  not,  where  decedent's  title  was  qualified      .     210 
various  cases  where  representative  does  not  hold  strictly  as 

assets 211 

real  estate  descends  to  heirs  ;  not  assets  except  for  deficiency     212 
executor  or  administrator  has  no  inherent  authority  as  to  real 

estate 213 

real  estate  of  mortgagor  or  mortgagee  ;  rule  of  assets    .     .     .     214 

rule  of  assets  as  to  land  set  off  on  execution 215 

rents,  profits,  and  income  of  real  estate  ;  rule  of  assets      .     .     216 
legal  character  of  property,  real  or  personal,  fixed  at  owner's 

death 217 

rule  of  equitable  conversion 217 

character  of  property  at  owner's  death ;  instances ;  contract  to 

sell  land 218 

land  damages  ;  fire-insurance  money 218 

gifts  causa  mortis  as  affecting  question  of  assets 219 

assignment,  gift,  or  transfer  by  decedent,  to  be   avoided  if 

fraudulent  as  against  his  creditors 220 

equitable  assets  as  distinguished  from  legal  assets      ....     221 
assets  where  property  is  appointed  under  a  power      ....     222 

chattels  real  as  assets  ;  leases,  etc 223 

chattels  which  come  by  remainder  as  assets 224 


INDEX.  697 

ASSETS  —  COntimicd,  Section 

things  on  the  border-line  of  real  and  personal 225 

rule  of  assets  applied  to  heirlooms 225 

emblements 226 

fixtures 227 

products  of  severance 227  a 

new  assets  for  debts 446  b 

rule  as  to  foreign  assets 24,  174,  228 

See  Inventory. 
general  powers,  duties,  and  liabilities  of  executors  and  admin- 
istrators as  to  assets. 
title  to  personal  property  and  its  devolution  upon  the  repre- 
sentative           238-250 

right  and  duty  of  discharging  contract  liabilities  of  deceased   .     251 
contracts    personal   to   decedent;    representative's   undertak- 
ing     253-255 

representative's   own   creation   of  debt;    estate  how  answer- 
able              258-260 

assets  recovered  by  representative  on  his  own  contract  enure 

to  estate 261 

estate  should  not  derive  unconscientious  advantage   ....     262 
control  of  assets  in  probate  and  equity ;  interpleader,  etc.     264,  265 
vesting  of  possession ;  chattels  real  and  chattels  personal  dis- 
tinguished        267 

whether  representative  may  act  by  attorney 268 

collection  of  assets. 

general  duty  of  representative  to  collect  and  procure  the  ef- 
fects, etc 269 

statute  methods  for  discovering  assets  in  aid  of  his  pursuit      .     270 
pecial  statute  proceedings  against  intermeddlers  with  assets, 

etc 271 

power  of  representative  to  enter  premises,  force  locks,  etc.  .  272 
duty  to  pursue  or  collect  depends  upon  means  at  disposal  .  .  273 
also  upon  sperate  or  desperate  character  of  claims      ....     274 

also  upon  representative's  means  of  knowledge 275 

legatees,  creditors,  etc.,  have  no  right  to  hold  against  him  .  276 
suing  to  recover  assets;  actions  founded  in  contract,  etc., 

survive       277 

rule  of  survival  as  to  contract  obligation  ;  exceptions  .  .  .  278 
actions  founded  in  injury  to  person  or  property     ....  279-282 

action  for  damages  in  causing  death 283 

action  founded  in  wrong  done  to  real  estate ;  upon  covenants 

real,  etc 284,  285 

breach  of  covenant  in  deed  or  lease 286 

action  for  disturbing  possession  ;  pew,  lease,  etc 287 

in  general  personal  representative  sues  for  assets  of  the  estate    288 


698  INDEX. 

ASSETS  —  continued,  Section 

suits,  whether  to  be   brought  by  representative  in  his  own 

name  or  as  representative 289 

general  principle  as  to  such  suits 290 

this  principle  applied  in  suing  for  torts  affecting  the  property  .  291 

suits  on  contracts  made  with  the  representative 292 

suit  on  promissory  note  or  other  negotiable  instrument       .     .  293 
general  conclusion  as  to  suing  on  contract  in  individual  or 

representative  character 294 

prosecuting  suits  in  equity  with  reference  to  assets    ....  295 
proceedings  to  obtain  possession  of  specific  negotiable  instru- 
ments, etc 296 

pursuit  of  assets  where  decedent  fraudulently  transferred    .     .  297 

representative's  power  to  compromise  or  arbitrate     ....  298 
effect  of  contract,  covenant,  etc.,  to  decedent  which  did  not 

name  executors,  administrators,  etc 299 

effect  where  expression  "assigns,"  "next  of  kin,"  "heirs," 

etc.,  is  used 300 

right  of  representative  to  distrain  or  sue  for  rent  in  arrears      .  301 

right  as  to  conditions  made  with  deceased 302 

right  accruing  to  personal  representative  by  chattel  remainder, 

etc 303 

in  his  time  and  after  decedent's  death  .     .     .    ^     .     .     .  304 
right    of   personal    representative    as    to    pledge,    collateral 

security,  etc 305 

collection  of  debts  with  security;  changing  or  renewing  the 

security 306 

gathering  the  crop  or  emblements 307 

want  of  diligence  or  good  faith  in  collecting  assets     ....  308 

collection  of  interest-bearing  debts ;  usury,  etc 309 

what  may  be  taken  in  payment;  private  arrangements  with 

debtor,  etc 310 

liability  where  property  is  taken  or  money  collected  by  mistake 

as  assets 311 

care,  custody,  attd  management  of  assets. 

effect  of  paj-ment,  etc 31 1« 

care,  custody,  and  management,  an  important  function  .     .     .  312 
executor  or  administrator,  how  far  a  bailee  as  to  responsi- 
bility      313,  314,  316 

whether  like  a  gratuitous  bailee  or  a  bailee  with  recompense  .  315 
liability  as  to  care,  and  custody,  and  general  management    313-316 

collection  of  income,  etc. ;  responsibility 317 

as  to  investing  or  paying  cash ;  deposits,  etc 317^ 

paying  assessments,  discharging  liens,  etc.,  on  personal  assets  318 

vote  upon  stock 319 

putting  assets  into  salable  condition ;  repairing,  etc.       .     .     .  320 


INDEX.  699 

ASSETS  —  continued.  Section 

responsibility  of  representative  for  acts  of  his  attorney,  etc.  .  321 
duty  as  to  investing  assets  ;  placing  funds  at  interest,  etc.  .  .  322 
investments,  how  to  be  made,  etc. ;  rule  of  li.-xbility  .  323,  324 
liability  for  leaving  assets  in  trade;  speculation,  etc.      .     .     .     325 

closing  out  decedent's  business,  etc 3~S^ 

carrying  on  a  trade  with  assets,  etc 326 

sale,  investment,  etc.,  of  perishable  assets 327 

calling  in  money  already  out  on  loans  or  investments     .     .     .     328 

making  unauthorized  loans  or  investments 329 

representative's  acts  are  for  benefit  of  those  interested ;  good 

faith,  etc.,  required 330 

assets  should  be  kept  distinct  from  representative's  own  prop- 
erty  331 

liability  qualified  when  acts  are  performed  under  advice  and 

assent  of  parties  in  interest 332 

or  under  direction  of  court 333-334 

following  directions  of  will  as  to  investment 335 

lending  on  poor  or  no  security 335  a 

summary   of    doctrine  as   to   management   and   investment ; 

deviations 336 

rule  similar  to  that  of  guardian,  trustee,  etc 337 

election  of  parties  in  interest  to  charge  representative  or  ac- 
cept investment 338 

representative's  power  to  sell  and  transfer  assets  and  to  purchase. 

power  to  dispose  of  assets 322,  339 

sale  or  transfer  only  while  representative  holds  ofifice      .     .     .     340 

whether  at  public  or  private  sale 341 

sale  of  goods  bequeathed  for  life  with  remainder 342 

power  of  representative  to  dispose  of  chattels  specifically  be- 
queathed     343 

sales  of  perishable  assets,  etc 344 

representative's  sale  of  his  decedent's  business      .     .     .     .325,  345 

sales  and  transfers  under  probate  direction 346 

authority  as  affected  by  expressions  in  the  will 347 

consulting  parties  in  interest  as  to  time,  manner,  etc,  of  sale  .  348 
representative  may  pledge  or  mortgage  assets  instead  of  selling  349 
bo?td   fide   purchaser,    pledgee,    etc.,    not   bound   to    see    to 

application 350 

letters  testamentary,  or  of  administration,  are  credentials  .  .351 
good  faith  and  caution  requisite  from  purchaser,  pledgee,  etc.  352 
disposal  of  chattels  real ;  assigning  and  underletting  leases,  223,  353 
restraints  upon  power  to  dispose  of  assets  as  to  representative     354 

his  liability  for  negligence,  fraud,  etc.,  in  sale 355 

obtaining  payment  or  taking  security  for  the  purchase-money  .  356 
collusive  or  fraudulent  disposition  of  assets  by  representative  .     357 


700  INDEX. 

ASSETS  —  continued,  Section 

purchase  by  representative  at  his  own  sale,  etc 358 

re-opening  representative's  voidable  transfer,  etc. ;  relief  as 

against  third  parties 359 

representative  cannot  avoid  his  own  voidable  transfer    .     .     .  360 

whether  he  warrants  title  when  he  sells 361 

sales  of  negotiable  instruments 258,  352,  362 

authority  to  purchase 363 

no  right  to  give  away  assets 437 

liability  of  an  executor  or  administrator  as  to  assets. 

liability  is  in  respect  of  acts  of  deceased  or  his  own  acts     .     .  365 

acts  of  deceased  ;  survival  of  actions  founded  in  contract    .     .  366 

exceptions  as  to  personal  contracts  of  deceased 367 

distinction  between  gifts  and  contracts 368 

form  of  action  material  in  this  connection 369 

survival  of  actions  founded  in  tort ;  not  permitted  at  common  law  370 

whether  replevin  can  be  maintained  against  representative       .  371 

whether  other  remedies  might  be  applied  because  of  tort  .     .  372 

modern  statutes  enlarge  the  survival  of  actions 373 

survival  of  actions  for  rent  or  damage  to  real  estate  ....  374 

covenants  of  decedent ;  covenants  under  lease,  etc 375 

personal  representative's  liability  for  rent 376 

liability  on  covenants  concerning  real  estate,  etc.       .*    .     .     .  377 

joint,  several,  etc.,  contracts  of  decedent      ....  378 

of  representative  of  deceased  partner       ........  379 

stockholder 380 

exoneration  of  personal  property  specifically  bequeathed     .     .  381 

liability  of  personal  representative  as  to  his  own  acts      .     .     .  382 

negligence  ;  bad  faith  ;  waste  or  devastavit 382-386 

representative  how  to  be  sued  for  his  wrongful  acts  ....  385 

effect  of  arbitration  or  compromise  of  demands     ....  386,  387 

release  of  debt,  renewals,  etc.,  by  representative 388 

general  and  special  statutes  of  limitations 389,  390 

opportunity  to  ascertain  insolvency 39I 

the  statute  of  frauds 392 

devastavit  when  excused  by  concurrence,  etc.,  of  those  injured 

thereby 393 

complicity  of  third  persons  in  the  devastavit  renders  them 

liable 394 

liability  of  executor  or  administrator  on  his  own  contracts  .     .  395 

how  sued  upon  his  express  promise  or  collateral  undertaking  .  396 

exceptional  instance  of  suing  for  funeral  expenses,  etc.  .     .     .  398 
rights,  duties,  and  liabilities  as  to  assets  in  co-administration  and 

qualified  administration 399 

rights,  duties,  and  liabilities  of  co-executors ;  their  title  and 

authority 51,  400,  401 


INDEX.  701 

ASSETS  —  continued.  Section 

liabilities  of  co-executors 51,402 

co-executors  ;  actions  by  and  against 403 

rights,  duties,  and  liabilities  of  co-administrators  ....  404 
survivorship  among  co-executors  or  co-administrators  .  41,  51,  405 
liability  of  co-executors  and  co-administrators  on  bonds ;  joint 

or  several  bonds 406 

rights,  duties,  and  liabilities  of  administrator  with  will  an- 
nexed     123, 407 

rights,  duties,  and  liabilities  of  administrator  de  bonis  non 

128,  408,  409 
relation  of  administrator  de  bonis  non  to  predecessor's  con- 
tracts, etc 410 

suit  on   negotiable  instrument  as  concerns  administrator  de 

bonis  non 411 

administrator  de  bonis  non  bound  to  observe  good  faith  and 

prudence 412 

with  will  annexed 413 

rights,  duties,  and  liabilities  of  temporary  and  special  adminis- 
trators, etc 414 

qualified  representative's  designation  of  his  own  office    .     .     .    415 
negligence  by  various  representatives  in  succession    .     .     .     .    416 
See  Claims  ;  Distribution  ;  Legacies. 

marshalling  assets  in  case  of  a  deficiency 490,  512 

See  Real  Estate. 
ASSIGNMENT, 

voluntary  in  fraud  of  creditors 220 

See  Assets. 

ATTESTATION.     See  Will  . 78 

ATTORNEY, 

delegation  of  authority  does  not  relieve  of  responsibility    .  159,321 

whether  representative  may  act  by  attorney 268 

fees  when  allowed  in  account 544, 545 


B. 

BAILMENT, 

doctrines  of  responsibility  applied 3i3>3i6 

BEQUEST.     See  Legacy. 
BODY, 

of  decedent 368  a 

BONA  NOTABILIA.    See  Administration  ;  Assets  ....     24,91 
BONDS, 

necessity  of  qualifying  before  appointment 136 

security  required  from  the  court 136 


702  INDEX, 

BONDS  —  COnthlued,  Section 

when  and  how  required  from  an  executor 137 

of  an  executor  who  is  residuary  legatee 138,534 

when  and  how  required  from  an  administrator 139,  140 

how  probate  bonds  are  taken  ;  penal  sum,  sureties,  etc.  .  .  .  141 
irregularities,  etc.,  attending  execution,  how  far  available  .  .  142 
whether  probate  bond  may  bind  as  a  common-law  bond       .     .  '  143 

sufficiency,  as  to  the  security  and  parties  offered 144 

co-executors  and  co-administrators  ;  joint  and  separate  bonds       145 
probate  bond ;  what  property  is  covered ;  what  functions  in- 
cluded, etc 146 

release  or  discharge  of  sureties 147 

new  or  additional  bonds,  when  and  how  required 148 

lost  and  missing  probate  bonds 149 

of  co-executors  and  administrators 145,406 

of  administrator  with  will  annexed 123,407 

2Axm.vi\%\xz.\.or  de  botiis  non 12S,  4.08  ef  seg. 

bond  of  indemnity  from  legatees 477 

remedies  for  overpayment,  etc 491 

special,  where  licensed  to  sell  real  estate 513 

negotiable,  as  investment 202 

BONORUM  POSSESSIO 6 

BURIAL.    See  Funeral. 


C. 

CAPITAL 13,476 

CHANCERY.    See  Actions  ;  Courts. 

CHARGES.    See  Accounting 535  ei  seq. 

CHATTELS  REAL 223,  224,  303 

See  Assets  ;  Lease. 

CHILD.     See  also  Infant. 

payment  of  legacy  to  infant 483 

as  distributee 495,  498 

advancements  to,  how  reckoned 499,  500 

CITATION, 

in  proceedings  for  probate  and  administration    .     .    .     69,112,115 
on  accounts 523 

CLAIMS, 

oti  behalf  of  the  estate. 

See  Assets. 
against  the  estate. 

executor  of  administrator  bound  to  pay  debts,  claims,  etc.    251,  417 

notice  of  appointment ;  presentation  of  claims 418-420 

statutes  of  special  limitations 418-420 

funeral  charges  and  their  priority 421 


INDEX.  703 

CLAIMS  —  continued.  Section 

place  of  final  interment ;  gravestone,  etc 422 

other  preferred  claims;  administration  charges;  debts  of  last 

sickness 423 

these   preferred   claims   rank  together ;    settlement  in  full  or 

ratably 424 

general  payment  of  debts ;  rule  of  priority 425 

English  classes  as  to  priority,  enumerated ;  debts  of  record ; 

specialty  and  simple  contract  debts,  etc 426,  427 

American  rules  of  priority  among  claimants 428 

claims  grounded  in  a  tort ;  damages,  etc.,  how  reckoned     .     .     429 

classification  by  probate  court 428  «.,  433 

mortgage  debts ;  rights  of  creditors  having  security  ....     430 
invalid  or  exorbitant  claims;  voluntary  transactions    .     .      252,  431 

claim  of  person  disappointed  of  a  legacy 432 

decree  or  order  of  payment 433 

commissioners  or  auditors  to  examine  claims 434 

exhaustion  of  assets  in  paying  superior  claims ;  preferences  to 

be  observed 435 

notice  of  debts  as  aflfecting  their  payment,  etc. ;  English  rule, 

436,  437 
English  rule  as  to  equal  creditors ;  creditors' bill,  etc.  .  .  .  437 
notice  of  debts  as  affecting  their  payment ;  American  rule  .  .  438 
debt  due  representative  from  estate  ;  right  to  retain,  etc.     .     .     439 

interest  on  claims  presented 440 

mode  of  paying  off  claims  ;  extinguishment,  etc 441 

personal  liability  of  representative  for  debts 442 

payment  or  advancement  out  of  representative's  own  funds      .     443 

recovery  of  over-payment  from  creditor 444 

when  heirs,  next  of  kin,  etc.,  are  liable  for  debts  of  the  estate      445 
payment  of  claims  where  estate  proves  insolvent        .     .       435,446 

new  assets  for  debts 446  b 

satisfaction  of  debt  by  legacy 467,  470 

See  Legacy. 

widow's  allowances,  etc 447  et  seq. 

See  Widow. 

take  precedence  of  legacies 476 

See  Legacies. 

sale  of  real  estate  to  pay 511,  514 

CO-ADMINISTRATION.    See  Joint  Administration. 

CODICIL.     See  Will 60,  82 

COLLATERAL   SECURITY.     See  Pledge. 
COLLECTION, 

of  debts,  personal  assets,  etc 269  et  seq 

See  Assets. 


704  INDEX. 

COMPENSATION,  Section 

of  executor  or  administrator 545 

COMPROMISE, 

power  of  representative 298,  373,  386,  387 

CONCEALMENT       270 

See  Assets. 
CONFLICT   OF   LAWS, 

general  rule  of  comity ;  authority  of  representative  local      .     .  15 

rule  as  to  foreign  creditors 15 

comity  favors  as  to  payment  of  legacies  and  distribution     .     .  16 

as  to  execution  and  validity  of  foreign  wills 17 

as  to  accountability  of  executor  or  administrator 18 

personal  and  real  property  contrasted ;  situs  prevails  as  to  real  19 

general  rules  varied  by  treaty,  statute,  etc 20 

probate  of  foreign  wills 57 

foreign  and  ancillary  appointments  in  the  United  States  and 

England 162 

what  is  ancillary  administration 163 

letters  testamentary  or  of  administration  have  no  extra-territo- 
rial force 164 

foreign  and  domestic  probate  and  letters  testamentary    .       169,  170 
whether  will  to  be  operative  must  conform  to  law  of  last  dom- 
icile        •    .     .     .  171 

foreign  and  domestic  administration 172 

foreign  appointment  of  executors  and  administrators ;    local 

letters,  etc 173 

principal  and  ancillary  letters  ;  comity  as  to  transmitting  assets 

for  distribution  after  local  debts  are  satisfied 174 

duty  of  the  domestic  representative  as  to  foreign  assets  .     .175,  228 

voluntary  surrender  of  local  assets  to  domiciliary  administrator  176 
liability  of  representative  in  domestic  jurisdiction  for  acts  done 

abroad 177 

permitting  foreign  creditors  to  sue  in  the  local  jurisdiction  .     .  178 
principal  and  ancillary  jurisdictions,  how  far  independent  of 

one  another 179 

responsibility  where  the  same  person  is  principal  and  ancillary 

representative 180 

ancillary  or  local  representative,  how  far  responsible  for  assets  181 
where  different  executors  are  named  in  a  will  for  different  sov- 
ereign jurisdictions  182 

where   the   principal   representative   cannot   procure    foreign 
assets,  legatees  and  distributees  may  pursue      .  183,  446  a,  515  a 

accounts  and  allowances 547 

officiating  without  an  appointment ;  executor  de  son  tort,  etc. 

184  ei  seq. 
See  Appointment. 


INDEX.  705 

SectioQ 

CONSANGUINITY.    See  Appointment;  Table  in  Appendix,  ioi,  102 

CONSTITUTIONAL  QUESTIONS, 

affecting  administration  in  the  United  States 28,  29 

each  State  exercises  independent  jurisdiction ;  United  States 
should  not  interfere 29 

CONTRACT.     See  Actions. 

liabilities  of  deceased 251  <?/ j^j^.  365 

See  Assets;  Claims. 

CONVERSION       217 

CORPORATION.    See  Actions  ;  Assets. 

assets  owing  by 25  « 

as  executor 32 

unsuitable  to  administer,  when  . 107,  1 14 

as  legatee 460 

COURTS.    See  also  Actions. 

former  abuses  of  spiritual  courts  in  cases  of  intestacy      ...         7 

English  ecclesiastical  or  spiritual  jurisdiction 10 

probate  jurisdiction  and  procedure  in  the  United  States       .       11- 13 

chancery  jurisdiction  whether  concurrent 13 

modern  probate  jurisdiction  in  England  ;  new  Court  of  Probate 

Act  20  &  21  Vict 14 

jurisdiction  in  granting  letters ;  founded  in  domicile  .     .     .      22,23 

locality  of  personalty  or  bona  notabilia 24-26 

questions  of  double  jurisdiction 24-26 

whether  locality  of  real  estate  may  give  jurisdiction  ....  27 
constitutional  points  ;  each  State  exercises  jurisdiction  .  .  28,  29 
appointment  of  executors  or  administrators     ....      52  ^^  seq. 

revocation  of  letters ;  new  appointment,  etc 150-161 

appeal  from  decree  of  probate  court;  mandamus,  etc.  150,  151,  161 
See  Appointment. 

effect  of  probate  decrees 160 

in  matters  of  foreign  and  ancillary  administration      .     .   162  et  seq. 
See  Conflict  of  Laws. 

power  of  probate  court  as  to  inventory 236 

probate  and  equity  control  of  assets ;  bills  for  administration, 

etc 264 

interpleader  for  instructions 265 

directing  investments,  etc 333,  334 

sales,  etc.,  of  personal  assets  under  probate  direction    .     .     .     346 
classification   of  claims   against  estate ;    and   order  of  pay- 
ment      428  «.,  433 

creditors'  bill,  etc 437 

commissioners,  auditors,  etc.,  as  to  claims 434 

decree  for  widow's  allowance,  etc 452 

equity  and  probate  jurisdiction  of  wills  and  trustees  ....     472 


700  INDEX. 

COURTS  —  continued.  Section 

interpleader,  etc.,  for  construction  of  will 473 

license  to  sell  real  estate,  etc 511,513,516 

compelling  an  account  in  equity 519,520 

jurisdiction  of  accounts  and  allowances ^18  el  seg. 

See  Accounting. 

COVENANT.     See  Assets  ;  Claims. 

CREDITOR, 

right  to  administer 115 

foreign  claimants,  etc 173 

See  Claims  ;  Conflict  of  Laws. 

CROP.     See  Emblements. 

CUSTODY.    See  Assets. 


D. 

DEBT, 

of  representative,  legatee,  etc.,  to  decedent 208,  470 

due  from  decedent 439,  469 

See  Assets. 
in  general.     See  Claims. 

DEVASTAVIT.    See  Actions  ;  Assets 382-384 

DEVISE.     See  Will. 

DISTRIBUTION, 

rules  of  comity;  non-residence,  etc 16 

balances  due  public  officers,  pensioners,  etc 120 

of  foreign  assets 174,  183 

See  Conflict  of  Laws. 

distributee's  ultimate  title 207 

debt  of  distributee  to  decedent 208 

representative  who  is  also  distributee 248 

distributees  when  liable  for  claims  against  estate 445 

residue  of  personal  estate  goes  according  to  testacy  or  intes- 
tacy   492 

as  to  the  residue  in  case  of  testacy ;  residuary  legatee   .     .     .     493 

rights  where  there  is  no  residuary  legatee  named 494 

as  to  the  residue  in  case  of  intestacy ;  distributees    ....     495 

statutes  of  distribution 495 

surviving  husband's  right  to  residue  of  deceased  wife's  person- 
alty   496 

surviving  wife's  rights  in  the  distribution  of  deceased  husband's 

personalty 497 

rights  of  children  and  lineal  descendants  in  distribution  .  .  498 
advancements  to  children,  how  reckoned  in  distribution  .  499,  500 
general  distribution  among  the  next  of  kin 501,  502 


INDEX.  707 

DISTRI BUTION  —  continued.  Section 

distribution  where  there  is  no  known  husband,  widow,  or  next 

of  kin 503 

time  and  method  of  distribution 504 

distribution  where  real  estate  has  been  sold  to  pay  debts    .     .     505 
whether  distribution  may  be  of  specific  chattels  not  reduced  to 

cash 506 

death  of  distributee  pending  distribution 507 

distribution ;  reimbursement,  contribution,  etc.     .     .     .       445,  508 
decree  of 504,  527 

DOMICILE.     See  Conflict  of  Laws. 

what  this  is  ;  residence,  inhabitancy,  etc 21 

applied  to  the  subject  of  administration  .     .     .  22,  23,  91,  167,  183 
death  while  on  transit,  etc 23 

E. 

EMBEZZLEMENT.     See  Assets 270 

EMBLEMENTS 226,  307,  315 

ESCROW 83,  218 

ESTATE.     See  Administration. 
EXECUTORS, 

modern  definition  of 2,  3,  30 

absolute  or  qualified 31 

appointment  of yi  et  seq. 

See  Appointment. 

who  may  be 32,  34 

scope  of  appointment  or  designation 35.  40 

acceptance,  refusal,  etc 44-51 

appointment  by  court ;  letters  testamentary 52 

probate  of  will  by 53 

See  Probate. 

should  propound  will  for  probate 64 

grant  of  letters  upon  probate  ;  only  one  probate  needful      .     .      87 

bonds  of 137,  138 

administration  with  will  annexed 127 

See  Bonds. 

removal  or  resignation 154,  156 

See  Appointment. 

foreign 162  et  seq. 

See  Conflict  of  Laws. 

executor  de  son  tort 46,  184  if/  seq. 

See  Appointment. 

acts  done  before  qualifying 46,  194 

distinguished  from  administrators  as  to  power  to  dispose    .    .    241 


708  INDEX. 

EXECUTORS  —  continued,  Section 

should  administer  estate  undisposed  of;  partial  intestacy    .     .     250 

as  residuary  legatee 249 

matters  common  to  executors  and  administrators. 

See  Administration. 
EXONERATION, 

of  personal  property  specifically  bequeathed 381 

of  real  estate  by  personal 512 

EXPENSES.    See  Accounting 542  et  seq. 

F. 

FIXTURES 227,  287 

FOREIGN, 

appointments,  distribution,  etc 162 

See  Absentee  ;  Conflict  of  Laws. 
FRAUD, 

of  decedent  as  to  his  creditors  avoided 220,  234,  252 

pursuit  of  assets  fraudulently  transferred  by  deceased     .    .     .     297 

in  dealing  with  assets 357 

waste;  devastavit,  etc 382,  384 

See  Assets. 
fraudulent  claims  against  an  estate 431 

FRAUDS,  STATUTE  OF, 

as  to  personal  undertaking  of  representative  on   decedent's 

behalf 255 

affecting  decedent's  engagements,  etc 392 

FUNERAL.    See  Claims 398,  421-424 

G. 

GIFT, 

<ra:«j<z  »«<?r//j  as  affecting  question  of  assets 219 

voluntary  transfer  in  fraud  of  one's  creditors 220 

distinguished  from  contract 368 

of  assets  by  representative 364 

See  Advancements. 
GUARDIAN, 

inventory  of  representative  as  to  several  wards 235 

where  representative  is  also  guardian 247 

investment  rule 337 

H. 
HEIRLOOMS 225 

HUSBAND, 

surviving,  right  to  administer  deceased  wife's  estate  ....      98 


INDEX.  709 

HUSBAND  — continued,  S«ction 

deceased,  administration  by  wife 99 

See  Wife,  Widow. 

administering  in  wife's  right 106,  126 

deatli  of,  pending  settlement  of  spouse's  estate 130 

surviving,  right  to  residue  of  wife's  personal  estate     ....    496 


I. 

ILLEGITIMATE  CHILD, 

right  to  administer 108 

distribution  of  estate 117 

as  to  distributee 5^3 

INCOME, 

of  personal  property 200,317 

of  real  property 216 

INFANT, 

as  executor 32 

testamentary  capacity 80 

unsuitable  to  administer 107 

administration  during  minority  (^durante  minore  state)  .      132,  135 

allowance  to 447>  455 

as  to  accounting 543 

interest  on  legacy 481?  482 

See  Child  ;  Guardian. 

INSANE  PERSON, 

testamentary  capacity  of 80 

unsuitable  to  administer 107 

legacy  to,  how  payable 483 

INSOLVENCY, 

as  unfitting  for  executorship     .     .     .     .    c 33 

as  disqualifying  to  administer 104 

of  decedent;  effect  of 391,420,421,424 

payments  where  estate  is  insolvent 435>  44^ 

widow's  allowance,  whether  affected 45^ 

INSURANCE, 

life,  policy  of,  whether  assets 202,211 

fire  insurance 218 

INTEREST, 

collection  of  interest-bearing  debts,  usury,  etc 309 

placing  funds  on  interest 322 

on  claims  against  the  estate 44° 

interest  and  produce  of  specific  legacies 480 

interest  computed  on  general  legacies 481,482 

when  charged  to  the  representative 538 

when  allowed  him  in  his  account 54 '>  542 


7JG  INDEX. 

Section 

INTERMEDDLING 184  ^/ J^y.,  271 

INTERPLEADER, 

bill  of,  for  instructions 265, 473 

INTESTACY.    See  Administration  ;  Administrators. 

INVENTORY, 

of  real  and  personal  property 5 

formerly  required  in  England  ;  custom  fallen  into  disuse     .     .     229 
required  in  American  practice ;  whether  indispensable    .     .    .     230 

dispensing  with,  after  lapse  of  time 231 

qualified  representative  not  exempt  from  rendering     ....     232 

what  the  inventory  should  contain    .     - 233, 234 

assets  and  inventory  in  special  instances ;  co-ownership,  etc.     235 
effect  of  inventory ;  power  of  local  probate  court  to  alter,  etc.  .     236 

inventory  as  evidence 236 

advantages  of  returning  an  inventory 237 

items  in  account,  etc 53^ 

INVESTMENT.    See  Assets 323  ^^  j.?^. 

J- 

JOINT  ADMINISTRATION, 

co-executors,  appointment  of,  etc 40,41,51,128 

appointing  co-administrators ^    .     .111,128 

bonds  of  co-executors  and  co-administrators 145 

co-executors;  rights,  liabilities,  etc 51,400-406 

co-administrators;  rights,  liabilities,  etc 41,51,404-406 

accounting  by  co-executors  or  co-administrators 532 

JUDGMENTS.     See  Actions  ;  Claims. 

JURISDICTION.     See  Courts. 

in  probate  of  wills ;  last  domicile,  etc 15,  24,  29,  57 

spiritual,  as  to  appointing  administrator  where  no  executor      .      90 

essentials  of  jurisdiction 91,92 

as  to  revocation,  removal,  etc.  ...«,«> 157 

K. 

KIN,  NEXT  OF, 

how  appointed loi,  102,  125 

See  Appointment. 

as  distributees ,• 498-502 

See  Distribution. 


L. 

LANDS.    See  Real  Estate. 
LEASE, 

as  assets ;  chattels  real 223,  224 


INDEX.  711 

LEASE  —  continued.  Section 

vesting  of  possession ;  chattels  real,  leases,  etc.,  distinguished 

from  chattels  personal 267 

suits  upon  breach  of  covenant 286,367,375 

disturbing  possession  ;  ejectment,  etc 287 

distraining  or  suing  for  rent 301 

assignment  and  transfer;  underletting,  etc 223,  353 

LEGACY.     See  Will. 

rule  of  foreign  will ;  comity 16,  174,  183 

residuary  legatee,  appointment  and  bond  of 124,138 

legatee's  debt  to  decedent 208 

legatee's  ultimate  title  to  legacy 207 

representative  who  is  also  legatee 248 

rights  of  legatees,  as  to  investment  and  sale  ....    335,  338,  343 

bequests  for  life  with  remainder 342 

specific  bequest ;  exoneration;  how  delivered 381 

claims  of  persons  disappointed  of  legacies 432 

legatee,  when  liable  for  claims  against  the  estate 445 

legacies,  their  nature  and  incidents. 

this  subject  a  branch  of  the  law  of  wills 458 

legacy  defined  ;  executor  should  pay  or  deliver 459 

description  of  legatee  and  who  may  be  such 460 

subject-matter  of  legacies;  specific  distinguished  from  general  461 
whether  a  residuary  bequest  can  be  deemed  specific  ....  462 
bequests  for  illegal  and  immoral  purposes  void ;  superstitious 

uses,  etc 463 

bequests  to  charitable  uses  ;  statute  of  Elizabeth       ....     464 

bequest  void  for  uncertainty 465 

where  principal  or  income  is  locked  up  too  long 465 

restraints  under  statute  of  mortmain 465 

legacies  absolute  or  conditional,  vested  or  contingent     .     .     .     466 

lapsed  legacies,  general  rule 467 

cumulative  legacies  ;  repetition  or  substitution  of  legacies  .     .     468 

satisfaction  of  debt  or  portion  by  legacy 469 

release  of  debts  by  legacies 470 

ademption  of  legacies 471 

trustees  under  a  will ;  duties  of  trustee  ;  appointment    .     .     .     472 
equity  and  probate  jurisdiction ;  bill  of  interpleader  for  con- 
struction     , 472,  473 

construction  of  wills,  legacies,  etc 474 

doubtful  points  settled  by  agreement  of  all  parties  concerned  .     475 
payment  and  satisfaction  of  legacies. 

payment,  etc.,  of  legacies ;  all  valid  legal  claims  take  prece- 
dence    .     .     .    ' 445'  476 

executor's  bond  of  indemnity  from  legatees 477 

legacies  usually  payable  within  a  year  from  testator's  death     .     478 


712  INDEX. 

LEGACY  —  continued.  Section 

when  legatee's  right  vests 479 

rule  as  to  annuitants,  beneficiaries  for  life,  etc 479 

interest  and  produce  of  specific  legacies 480 

interest  on  general  legacies 481 

special  instances  ;  widow,  children,  etc 482 

to  whom  legacies  should  be  paid  ;  deceased  legatees      .     .     .     483 

payment  of  legacy  to  infants,  insane  persons,  etc 483 

payment,  as  to  absentees,  persons  not  known,  etc.    .     .       484,  494 

payment  of  legacies  to  testamentary  trustees 485 

delivery  of  specific  legacies  ;  legatee's  right  to  select,  etc.  .     .     486 

method  of  paying  general  legacies  ;  currency,  etc 487 

assent  of  executor  to  a  legacy 488 

legatee's  assent  to  the  legacy 489 

abatement  of  legacies  in  case  of  deficient  assets  ;  relative  rank, 

etc 490 

refunding  of  legacies  after  their  payment 491 

sale  of  real  estate  to  pay  legacy 511,514 

See  Real  Estate. 
bill  for  account,  etc 521,  522 

See  Accounting. 

LETTERS, 

testamentary  or  of  administration 52 

See  Administrators  ;   Executors  ;  Appointment. 
of  deceased,  whether  assets 205 

LIABILITY.     See  Administration 365  et  seq. 

LICENSE.     See  Real  Estate 513-517 

LIEN, 

upon  chattels 203 

on  assets  ;  not  created  for  creditor's  advantage 257 

but  for  representative's  own  immunity 257-260 

discharge  of,  by  representative 318 

claimants  against  estate  having  security 430 

right  of  representative  to  retain  for  debt  due  him       ....     439 

LIFE    INTEREST 476 

LIMITATIONS, 

to  probate  of  will 56,  69 

as  to  dispensing  with  inventory 231,390 

general  and  special  statutes  as  to  administration  .     .     .       258,  389 

special  statute;  as  to  presenting  claims,  etc 418-420 

lapse  of  time,  effect  upon  accounting 533 

LOCKS, 

power  of  representative  to  open,  etc 272 


INDEX.  7  1  3 

J^  _  Section 

MAINTENANCE.    See  Accounting  ;  Widow. 

.MANDAMUS.    See  Courts. 

MARRIAGE, 

suits  for  annulling ;  representative  not  a  proper  party     .     .     .     266 

MARRIED    WOxVIEN. 

as  executors 32 

See  Widow  ;  Wife. 

MORTGAGE, 

of  chattels  as  to  assets 203,  349 

of  real  estate  as  to  assets 214,  512  « 

investments  in 323,  324 

sales  of 258,  352,  362 

rule  as  to  exonerating  real  estate  by  the  personal       .     .       430,  512 
judicial  license  to  mortgage 516 


N. 

NOTES,   NEGOTIABLE 202 

running  to  executor  or  administrator 258 

suits  by  or  against  representative  as  to    .     .       293,  296,  398  a,  41 1 
See  Assets. 


P. 

PARTNERSHIP.    See  Assets 325,  326,  379 

partners  as  executors 32 

PAYMENT.    See  Claims;  Distribution;  Legacies,   311  «,  417  f/ j^y. 

PERSONAL   PROPERTY, 

various  kinds  enumerated 198  ^/  seg. 

See  Assets. 

PEW 287 

PLEDGE, 

as  to  assets 203 

rights  of  personal  representative 305,  306 

power  to  pledge  personal  assets 349-3 5  2 

claimants  against  estate  having  security        430 

See  Claims. 

POWER, 

under  will  exercised 49,222,347,  511 

PRIORITY.     See  Claims 425-428.451,476 

PROBATE.     See  Courts. 

of  the  will 53  t'/ j-t-y. 

duty  of  producing  will ;  fundamental  importance  of  determin- 
ing testacy  or  intestacy 53 


714  INDEX. 

PROBATE  —  COflflflued,  Section 

procedure  against  persons  suspected  of  secreting,  destroying, 

etc.,  the  will 54 

death  of  testator ;  its  effect  upon  will 55 

how  soon  after  death  should  will  be  presented  for  probate       .  56 
testamentary  papers  ineflfectual  until  after  proper  probate  ;  ex- 
ceptions   58 

probate  relates  back 58 

what  testamentary  papers  require  probate ;  wills  of  real  and 

personal  property 59 

testamentary  papers ;  various  kinds  stated ;  wills,  codicils,  etc.  60 

secret  wills,  extraneous  documents  referred  to 61 

instruments  which  do  not  purport  to  be  testamentary     ...  62 
modern  statutes  correct  laxity,  by  requiring  attestation  to  all 

wills 63 

by  whom  the  will  should  be  propounded  for  probate       ...  64 

petition  and  proceedings  for  probate 65 

probate  in  common  form  ;  non-contentious  business       .     .      65-68 

probate  in  solemn  form 65,  69,  70 

contest  over  conflicting  testamentary  papers 71 

agreement  of  parties  in  interest  to  conform  to  invalid  will  .     .  72 
proof  needful  to  establish  will ;  proceedings  at  the  hearing  for 

probate •.     .     .     .  y^ 

essentials  of  proof  detailed 74 

instrument  to  be  in  writing  and  signed  by  testator      .     .     .     74,  75 

publication,  so-called,  by  the  testator 75 

proof  by  subscribing  witnesses 76 

mode  of  attestation  by  witnesses yj 

proof  of  attestation  clause 78 

proof  of  suitable  testamentary  condition  on  the  testator's  part  79 

suitable  testamentary  condition  as  respects  legal  capacity    .     .  80 

proof  of  will;  testimony  at  hearing 81 

revocation  or  alteration  of  wills  ;  codicils  ;  new  wills      ...  82 

rule  of  escrow  not  applicable  to  wills 83 

lost  wills  ;  republication  of  will ;  informal  alterations      ...  84 

probate  in  whole  or  in  part 85 

probate  in  fac-simile  or  by  translation 86 

probate  of  two  or  more  testamentary  papers  ;  grant  to  executors,  87 

decree  of  probate  entered  ;  public  custody  of  the  will      ...  88 

nuncupative  wills  and  their  probate 89 

judge  of,  as  administrator 114 

PROPERTY.     See  Assets. 

PURCHASE.    See  Assets '   .    .    .    .      358,  363 


INDEX.  715 

^'  Section 

REAL   ESTATE, 

whether  locality  may  confer  jurisdiction 27,  154 

See  Conflict  of  Laws. 

whether  will  of  should  be  probated 59 

intermeddling  with 191 

descends  to  heirs  ;  not  assets  except  for  deficiency     .     .     .     5,212 
executor  or  administrator  has  no  inherent  authority  as  to  real 

estate 213 

rule  of  assets  as  to  mortgagor  or  mortgagee  .     .     .     .        214,  512  a 

as  to  lands  set  off  on  execution 215 

rents,  profits,  and  income  of  real  estate  ;  rule  of  assets    .     .     .     216 
legal  character  of  property,  real  or  personal,  fixed  at  owner's 

death 217 

rule  of  equitable  conversion ;  real  into  personal,  or  personal 

into  real 217 

character  of  property  at  owner's  death  ;  instances  ;  contract  to 

sell 218 

land  damages  ;  fire  insurance  money,  etc 218 

border  line  of  real  and  personal 225-227 

representati've's  title  and  authority  in  general 509  et  seq. 

no  inherent  authority  or  title  as  to  decedent's  real  estate       212,  509 

actions  relating  to  real  estate 284-286 

whether  the  executor  or  administrator  may  lease     .     .     .      353,  509 

as  to  setting  aside  conveyance  by  deceased 509 

rule  where  representative  collects  rents,  manages,  etc.     .     .     .     510 
power  to  sell  lands ;  sale  to  pay  debts,  legacies,  etc. ;  equity 

rules 511 

exoneration  of  real  estate  by  the  personal ;  whether  mortgages 

are  to  be  paid  off,  etc 430.  512 

equity  rule  as  to  marshalling  assets 512 

charges  and  allowances 512  <^,  539 

statute  sales  or  fnortgages  itnder  judicial  license  .  .  .  .  5 1 3  <'/  scq. 
modern  statutes  permitting  sales  under  a  judicial  license  .  .  513 
legislative   provisions  as  to  a  sale;   essentials  of  purchaser's 

title 514 

judicial  license  to  mortgage  for  certain  purposes 516 

levy  on  land  of  execution  obtained  against  the  representative  .     517 

intermeddler,  whether  an  executor  de  son  tort 191 

actions  founded  in  wrong  done  to  land 284 

upon  covenants  real,  etc 285 

distraining,  etc.,  for  rent  in  arrears 301 

taking  land  in  payment  of  debt 310 

investment  in 323,  324 

representative's  liability  on  covenants,  concerning     ....     377 
survival  of  actions  for  damage  to  real  estate 374 


7l6  INDEX. 

REAL  Y.ST ATE  — continued.  Section 

distribution  of  surplus  where  real  estate  has  been  sold  to  pay 
debts 505 

REASONABLE   PARTS.     See  Distribution 9-497 

RELEASE, 

of  claims 3^8 

of  debt  by  legacy 47° 

REMAINDER 224,  303,  342 

REMEDIES.     See  Actions. 

REMOVAL, 

of  executor  or  administrator 154,531 

RENT.     See  Lease  ;  Real  Estate. 

REPLEVIN.     See  Actions. 

REPRESENTATIVE,   PERSONAL.    See  Administration. 

RESIDENCE.     See  Domicile. 

RESIGNATION ^ 156,  53i 

RETAINER.     See  Lien. 

REVOCATION 82,  150  ^/ j^^. 

See  Administration  ;  Appointment. 

S. 

SALE, 

of  assets 322,  327.  339  ^^  ^^9- 

See  Assets. 

SECURITY 203,  305,  306,  430 

SET-OFF, 

representative's  right 508,  «. 

See  Lien. 

SETTLEMENT.     See  Accounting 527i  528 

SEVERANCE 227  a 

STOCK.     See  Assets. 

vote  upon,  and  liability  for 319,  380 

SUCCESSION, 

in  civil  law 6,  7 

SURETY.     See  Bonds. 
SURVIVAL, 

of  actions  by  or  against  estate 277,  366 

See  Actions. 

T. 

TAX.    See  Assessments. 

preference  of       .     .  426-428 

TESTACY.     See  Administration ;  Executors;  Wills. 
TITLE, 

to  personal  property  vests  in  executor  or  administrator 

194,  238  et  seq. 


INDEX.  717 

TORT.     See  Actions  ;  Claims  ;  Intermeddling.  Section 

TRADE, 

carrying  on,  with  assets 325,  326 

closing  out  business 325,  345 

TRUSTEE. 

under  will  also  named  as  executor 46 

trust  of  decedent  to  be  closed,  etc 244,  245 

case  where  guardian  is  trustee 247 

investment  rule 337 

testamentary  trustees  under  a  will 472,  485 

TRUST   PROPERTY, 

held  by  decedent,  ear-marks,  etc 205 


U. 


USURY.     See  Interest. 


W. 

WASTE.    See  Actions  :  Assets 382-384 

WIDOW.     See  Wife. 

insurance,  etc.,  for 211 

allowance  to,  under  modern  statute 448 

whether  confined  to  cases  of  distress 449 

maintenance  for  a  particular  period  sometimes  specified      .     .  450 
precedence  over  other  claims  ;  whether  independent  of  distri- 
bution, etc 451 

effect  of  decedent's  insolvency  upon  this  allowance    ....  45 1 

decree  of  allowance,  etc.,  how  enforced 452 

allowance  how  barred 453 

effect  of  widow's  death  or  re-marriage  before  grant    ....  454 

allowance  to  minor  children 455 

specific  articles  of  personalty  allowed  ;  exempt  chattels,  etc.    .  456 

use  of  dwelling-house  ;  widow's  quarantine 457 

election  to  take  against  husband's  will 457 « 

ancient  doctrine  of  reasonable  parts 9,  497 

See  Interest. 

WIFE, 

deceased,  husband's  right  to  administer 98 

will  of 98 

surviving,  administration  upon  husband's  estate    .     .     99,  106,  126 

death  of,  pending  settlement  of  spou.se's  estate 130 

marriage  of  sole  executrix  or  administratrix 154 

widow,  whether  deemed  intermeddler 193 

paraphernalia,  separate  property,  etc.,  do  not  enter  into  ad- 
ministration      447 


7l8  INDEX. 

WIFE  —  contin  ued.  Section 

surviving,  interest  in  residue  of  deceased  husband's  personal 

estate g,  497 

See  Married  Women. 

WILL, 

whethef  without  executor 3 

devise,  bequest,  and  legacy  distinguished 4 

whether  operating  on  property  afterwards  acquired    ....         4 
whether  of  real  and  personal  property  distinguished  as  of  right         8 

modern  statute 8 

affected  by  doctrine  of  reasonable  parts 9 

foreign ;  rules  of  comity 17 

death  of  testator,  its  effect  upon 55 

of  real  as  contrasted  with  personal  property S9»  76 

attestation  of;  modern  statutes,  etc 63,  74,  76,  78 

probate  of.     See  Probate, 

invalid  will  sustained  by  agreement 72 

testamentary  capacity,  etc 79,  80 

revocation  and  alteration ;  codicils  ;  new  wills 82 

rule  of  escrow  not  applicable 83 

lost  wills  ;  republication  ;  alterations,  etc 84 

letters  testamentary  issued  upon  probate 87 

public  custody  of  probated  will       88 

nuncupative  wills  and  their  probate 89 

foreign  and  domestic  probate,  etc 1 69-1 71 

case  of  partial  intestacy 250 

directions  of,  as  to  investment 335 

authority  to  sell  personal  assets  under 347 

legacies  under.     See  Legacies. 

election  of  widow  under 457  a 

construction,  to  remove  doubts 473 

WITNESSES.     See  Probate  ;  Will. 


^c.O-^e. 


AA    000  888  116 


